Governed by common law

The first point of a close relationship with the children would need to be proved because he was not there father. If proved then he would satisfy the first requirement. The second requirement of proximity would be difficult for Anthony to show because he was in Hong Kong. He did not see the accident or the immediate aftermath as shown by the case of Palmer v. Tees Health Authority. He could argue that he heard everything down the telephone so it was equivalent to being at the aftermath, but is very unlikely that he would succeed.

The third requirement would not be satisfied because he would have been told of the accident by a third party, and he would need to prove he suffered nervous shock through hearing the accident in the background, which is very unlikely he could. I think in the case of Anthony it would be very difficult to sue for nervous shock. Question 2A This question is concerned with Occupiers Liability. There are two acts, which govern the position on Occupiers Liability. 1. The Occupiers Liability Act 1957 – This governs a duty to lawful visitors.

Section 2(1) provides " An occupier of premises owes the same duty, the common duty of care to all his visitors, except in so far as he is free to and does extend, restrict modify or exclude his duty to any visitor or visitors by agreement or otherwise" 2. The Occupiers Liability Act 1984 – This governs duty to persons other than visitors. Section 1(1)(a) states that this act covers three categories of entrants: i. Trespassers ii. Persons who can enter land in the exercise of rights conferred by the National Parks and Access to the Countryside Act 1949.

Persons lawfully exercising a private right of way Who is an occupier and who is a visitor? An occupier according to the House of Lords is someone who has a sufficient degree of control over the premises, to unable him be under a duty of care to people who lawfully come on to his premises. A Case that shows this is Wheat v. Lacon (E. ) & Co. Ltd [1966] AC 522. In this case the defendants were owners of a public house, which was run by a manager. They granted the manager a license to use the top floor as accommodation; the managers' wife took in paying guests.

A guest fell down the staircase and was killed. The House of Lords declared that there may be two or more occupiers at anyone time. Lord Denning said " a landlord who lets the premises has parted with control of the premises so the tenant will be the occupier". Section 1(3) of the Occupiers Liability Act 1957 defines premises as any fixed or moveable structure. If what Lord Denning has said were to be taken in to consideration in our scenario, it would make Mr and Mrs Fontes the occupier of the premises.

Section 1(2) of the Occupiers Liability Act 1957 provides "a visitor is a person who would be treated at common law as an invitee or licensee". Where a person enters under a contract, a term would be implied that they owe that person a common duty of care this is shown in Section 5(1), and under section 2(6) where persons are entering for any purpose in the exercise of a right conferred by law. So in this case Mr Arantes would be able to claim he is a visitor under section 5(1) and section 2(6) of the Occupiers Liability Act 1957.

Section 2(1) states that the occupier owes his common visitor a duty of care, and Section 2(2) defines duty as " a duty to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using for the purposes for which he was invited or permitted" (Cooke 153). This means that Mr and Mrs Fontes owe Mr Arantes a duty of care. If Mr and Mrs Fontes were found to be liable, Mr Arantes would be able to claim for physical damage and the damage to his watch. My advise to Mr Arantes would be that Mr and Mrs Fontes could discharge the liability.

Mr and Mrs Fontes could claim the duty was discharged under, Section 2(4)(a) which states "a warning of danger may discharge the duty of care", Mr and Mrs Fontes warned Mr Arantes that the ladder was faulty and could discharge there duty of care. Although Mr Arantes could argue that there should have been a barrier or a added notice of the warning, as seen in the case Rae v. Mars (U. K) Ltd [1990] 3 E. G. 80 Mr and Mrs Fontes could use the defence of volenti. Volenti is provided by Section 2(5) "The common duty of care does not impose upon an occupier any obligation accepted as his by the visitor".

By Mr Arantes accepting the ladder as being faulty by saying "I have successfully used worse ladders in the past" he is accepting liability for what ever happens, if this defence was proved successful Mr Arantes would not be able to claim for damages. The other defence that Mr and Mrs Fontes could use is contributory negligence, "this defence will apply in actions under the act, and a visitor who has failed to take reasonable care for their own safety and that failure was a cause of their damage will have their damages reduced".

A case that shows this is Solle v. Hautt, and also the Law Reform (contributory Negligence Act 1945 section 1 (1)). This act will only apply where a person has suffered damage. Question 2B As seen in question 2a we have already established that Mr and Mrs Fontes are the occupiers, and we have established the position on premises. Mr Arantes is a trespasser. A trespasser is a person "Who goes on to land without an invitation of any sort, and whose presence there is either unknown to the occupier or is objected to".

(Cooke 267) The original duty owed was seen in the case of Addie v. Dumbreck Collieries [1929] AC 358, were it was said a trespasser was not intentionally or recklessly injured. The British Railways Board v. Herrington [1972] AC 877 changed the situation, where the court had to take in to account of the resources of the occupiers. The Occupiers liability Act 1984 tried to establish where the ground lied after this case. Section 1 (1)(a) of the act applies a duty of care to persons other than the visitors.

As it is established that Mr and Mrs Fontes are the occupier and Mr Arantes is a trespasser, Section 1(3) of the act can be applied although there is not an automatic duty Section 1(3) states: "An occupier of premises owes a duty to another in respect of any such risk as referred to in subsection if – a) He is aware of the danger or has reasonable grounds to believe it exists b) He knows or has reasonable grounds to believe that the other is in the vicinity of danger concerned or that he may come in to the vicinity of danger

c) There is one against which, in all circumstances of the case, he may reasonably be expected to offer the other some protection. " Was a duty owed? If Mr and Mrs Fontes were aware that the staircase was defective then they would owe Mr Arantes a duty of care, but it would need to be proved that they were aware of the defective staircase. This is due to section 1(3)(a) which has been stated above. It does not say in the scenario whether Mr and Mrs Fontes were aware or not. Section 1(3)(a) and (b) are seen as subjective as shown in White v. St Albans City Council (1990) The Times 12 March.

In this case the claimant, a trespasser, was taking a short cut across the defendants fenced off the property, when he fell in a trench and injured himself. It was held that the defendants were not liable because they had taken precautions to stop people from entering their land. If Mr and Mrs Fontes had a fence around their garden, they would not owe a duty of care, but if they did they would owe Mr Arantes a duty, it is not established whether there is a deterrent from the land. Under Section 1(3)(c) did Mr and Mrs Fontes offer reasonable protection. A case where the term reasonable grounds were used is Swain v.

Natu Ram Puri (1995). Section 1(4) states the content of the duty as "to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned". So an occupier may owe a duty to a trespasser who is engaged in committing a crime at the time of injury. This was seen in the case of Revill v Newbury 1996, it was held that the defendant was liable as it is governed by common law. This means that Mr and Mrs Fontes could still be liable even if Mr Arantes was committing a crime, so they would owe Mr Arantes a duty of care.

Mr and Mrs Fontes could claim a defence under Section 1(5), if they gave reasonable warning about the defective staircase, although it does not seem that they did give Mr Arantes any warning, so Mr Arantes could sue. It could be argued that contributory negligence was a defence as he was trespassing on their land although this is very arguable. If Mr and Mrs Fontes were found to be liable, Mr Arantes would only be able to claim for damages for physical injury, he would not be able to claim for his watch. As under section1 (8) the act does not apply to loss of or damage to property. Question 3A

This question is concerned with nuisance. Nuisance is concerned with indirect interference with land. There are three types of nuisance. Statutory nuisance is concerned with central governments concern for health, so statues such as The Noise Act 1996 and The Environmental Protection Act 1990 Part III cover it. The nuisance that this question was concerned with to advise Jerry is public and private nuisance. Public nuisance is "an lawful act or omission which materially affects the reasonable comforts and convenience of life of a class of Her majesty's Subjects" defined in the case Attorney General v. PYA Quarries [1957].

It is normally a crime, but an individual can sue on the grounds that they have suffered special damage. A case that shows public nuisance is Attorney General v. PYA Quarries [1957] 2 QB 169. In this case dust and vibrations from quarrying operations affected local residents, due to the fact so many residents were affected it was classed as a public nuisance. Halsey v. Esso Petroleum Co Ltd 1961 shows special damage. In this case the defendants operated a oil distributing depot, the claimant claimed that acid smuts were damaging their washing.

The smuts also caused damage to the car; due to the special damage the claimant could make a claim under public nuisance, and did not need an interest in land. In respect of public nuisance, and advise to Jerry in respect of public nuisance would be that he could argue it was a public nuisance, but would need that the other residents felt this way. He would also need show that he had suffered special circumstances, as seen in the case Halsey v. Esso Petroleum Co Ltd 1961, but I don't think Jerry could show this.

I do not think he could sue under public nuisance. "Private nuisance is an unlawful interference with a persons use or enjoyment of land, or some right over or in connection with it" (Cooke 243). A case that shows this Sadleigh – Denfield v. O'Callaghan 1940. Where the overflow of water onto the land of another constitutes physical damage and is actionable in nuisance. Private nuisance is normally concerned with use of land between neighbours and it must be shown that there is an interest in the land. A case that shows this is Malone v.

Lasky [1970] 2 KB 141 in this case the wife of tenant of premises was injured when a astern was dislodged by vibrations caused by the defendant. The wife had no claim under private nuisance, as she had no proprietary or possession interest in the land. Jerry is a neighbour and has sufficient interest in the land, and so it looks as if he would be able to use private nuisance. A case that is important to help Jerry in the issue of private nuisance is St Helens Smelting Co v. Tipping (1865). In this case the claimant bought an estate near to the defendants plant.

Fumes from the defendants' plant damaged the claimants' trees and crops. The court drew a distinction nuisances causing material damage to land and those, which caused sensible personal discomfort, where it causes personal discomfort locality becomes important. Jerry has had no physical damage to his land so locality is important. Jerry could use the case of Sturges v. Bridgman (1879) to his advantage. In this case the defendant had used industrial pestles and mortars for twenty years. The claimant was a doctor who built an extension, and at this point he said the defendant had become a nuisance.

The actions succeeded because the court took into account the fact that so many doctors worked in this area. Jerry could use this case to argue that the locality is that of industrial land, which employs a lot of people from the area, and so locality is important to them. It would be advisable to tell Jerry that Do-It Ltd may say it was Jerry's abnormal sensitivity. So "If the damage is due more to the claimants property than the defendants conduct then no nuisance is committed".

The defences that Do-It Ltd may argue is coming to the nuisance, although this is not a defence, they could argue it as in the case of Miller v. Jackson [1977] QB 966. Although Jerry should not worry because they cannot use this as a defence. Do-It Ltd may argue social utility, but the fact that the defendant's activity is a useful one is not a defence. Do-It ltd may try to use the defence of contributory negligence, but there is little authority on whether contributory negligence is available as a defence to nuisance. Do-It Ltd may be able to argue an act of god, due to the fact that the wind is blowing it in that direction. The remedies if Jerry Succeeded that could be made available to him are. 1. Damages 2. Injunction 3. Self Help.