Congleton Borough Council

Please note you must answer both parts of this question. v a. "But Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none. " Per Lord Hoffman in Tomlinson v Congleton Borough Council [2004] 1 AC 46. Discuss the above statement with reference to the Occupiers Liability Acts 1957 and 1984, critically evaluating the potential liability of an occupier under both Acts. (Word limit 1500 words)

AND b. Clare is the owner-occupier of Red Cottage, which is situated in a mainly residential district, close to a major railway line. Daniel, the owner of adjoining land, is carrying out construction works on his land and, for this purpose, has recently placed a tower crane on his land. Daniel's ground is unstable and he needs to drive piles into the ground in order to provide a secure foundation for his new building. Daniel expects to complete these pile driving operations in six weeks' time. Clare complains of the following:

i) Her sleep is being disturbed by the noise from Daniel's pile driving operations, which are often carried on late into the night. ii) The boom of Daniel's tower crane regularly invades the airspace above the garden of Red Cottage. Whilst this does not cause or threaten any interference with Clare's enjoyment of her property, she is not prepared to put up with what she considers to be an invasion of her rights as landowner. iii) When completed, Daniel's new building will obstruct the beautiful view from Red Cottage over the nearby Clettan hills.

Advise Clare as to her rights and remedies (if any) in tort in respect of each of her above complaints. (Word limit 1500 words) Question 1a The judgment in Tomlinson v Congleton Borough Council (1) provides a text-book analysis of the Occupiers' Liability Acts of 1957 and 1984.

The quotation as to duty perhaps gives a misleading impression of the true position and certainly is at odds with the observation of Lord Hobhouse that: "The two Acts apply the same general policy and the 1984 Act is a supplement to the 1957 Act". (2) In fact, Tomlinson has marked an ongoing trend in recent cases towards emphasising the concomitant duty of a visitor or a trespasser to exercise responsibility for their own safety. The imposition of a statutory duty under the 1957 and 1984 Acts has given good effect to the intention of Parliament to ensure that occupiers of premises (which covers premises as diverse as airplanes, shops, harbour beacons, beaches and railway carriages), take a responsible attitude to ensure that safety is paramount.

Resources will be taken into account, so a large company might reasonably be expected to do more. However, neither Act can legislate against foolhardy conduct by visitors or trespassers and it is the Courts' remit to ensure that fairness and justice are seen to be done. Far from a divergence of approach to the concept of duty, careful consideration of the wording of the two Acts throws up many similarities. In Tomlinson, Lord Hobhouse observed that the fundamental principles driving the two are the same (3). (1) (2004) 1 AC 4 (2) at para 68 (3) ibid et seq. There was a need to address the statutory lacuna post BRB v Herrington (4). Prior to Herrington, the status of a trespasser on land was poorly protected.

Following Robert Addie & Sons Collieries Ltd v Dumbreck (5), it could be fairly said that no duty was owed other than not inflicting intentional harm. Herrington highlighted that the denotion of a person as a trespasser carried with it a suggestion of wrongdoing, which may be inappropriate. A person may become a trespasser unintentionally and, particularly, children may be less aware of their surroundings than adults. Herrington, proposing a new test of common humanity, paved the way for a duty towards trespassers, now expressed in the 1984 Act.

The fundamental question as to whether any duty is owed to either visitor or trespasser is set out in the opening parts of each Act. The same duty is now owed "in respect of dangers due to the state of the premises or to things done or omitted to be done on them" (6),(7). How has the "state of the premises" issue been applied in later cases? In Siddorn v Patel (8), the claimant climbed onto a garage roof and fell through a skylight, sustaining injury. The claimant argued that there was a breach of duty (OLA 1984) in failing to warn of the unsafe state of the roof (not proven) and that the state of the premises was dangerous.

The court held that the claimant's injury was due to her activity on the premises; there was no evidence that the skylight was in a state of disrepair. As the tenant had never received permission to go onto the roof for any purpose, the premises themselves did not give rise to any danger within the meaning of s. (1)(1)(a). (4)(1972) AC 877 (5)(1929) AC 358 (6) S. 1(1) of the 1957 Act (7) S. 1(1)a of the 1984 Act (8) (2007)

All ER (D) 453 Similarly, and demonstrating that, even though an occupier must be prepared for children to be less careful, the Courts are reluctant to impose a duty where the claimant's own activity upon the premises causes injury, in David Lewis v National Assembly of Wales (9), the claimant, aged 14 rode, his bike on the defendant's land which comprised a disused single carriageway, a metre high embankment and a wide ditch.

The boy hit the embankment and was rendered paraplegic. It was argued that the land was inherently dangerous by its configuration, an allurement to children tantamount to a trap and the risk posed was due to the state of the premises. It was held that there was nothing inherently dangerous about the land, no hidden danger or risk of suffering injury by reason of danger due to the state of the premises.

The only danger arose from the activity of the claimant. Assuming that a duty is owed under either Act because of the state of the premises, the extent of the duty varies between the two. The 1957 Act requires the occupier: "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there" (10). (9) (2008) LTL 30/01/08

(10) s. 2(2) OLA 1957 Section 2(3) allows for "the degree of care, and of want of care, which would ordinarily be looked for in such a visitor" and that an occupier must be prepared for children to be less careful than adults (11). Far from a starting position that there is no duty owed to trespassers, the 1984 Act has a similar framework structuring the extent of the duty owed. S. 1(3) provides that the risk of injury arising from the known danger must be one against which, in all the circumstances, it is reasonable to expect the occupier "to offer ….some protection".

So the occupier is charged with taking such care as is "reasonable in all the circumstances" (3. 4). S. 3(5) specifically allows for the duty to be discharged by the use of warnings and discouragements against incurring the relevant risk although the wording of s. 2(4)a OLA 1957, that a warning may be given but must be sufficient to enable a visitor to be reasonably safe requires that the warning must do more than simply be advisory of any risk which may be sufficient under the 1984 Act.

Free will is a concept considered in Tomlinson and is actively encouraged by Lord Hobhouse in his observations: "it…. should never be the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. " So, in line with the 1957 Act (12), the 1984 Act (13) extends no duty to cover risks willingly accepted by the person reflecting the principle of volenti non fit injuria.