.png){kind=icon}
'Camden Cool', an after school youth club run by a local authority, is holding an open day to raise funds for the club. One of the main attractions is a large bouncy castle supplied, erected and supervised by Elsinore Castles, a small local company.
You are asked to advise various parties of any claims they may have under the Occupiers' Liability Acts 1957 and 1984 (OLAs). It is important to note that you only need to consider claims under the OLAs. You do not therefore need to consider whether there may also be a claim under the ordinary rules of the tort of negligence. If the instructions do not make this clear you should consider claims under both the OLAs and the common law.
The best way to answer this question is to work through each of the potential claimants one by one. Use headings. In all the cases, the occupier will be the local authority who runs the youth club.
It is important to know what the each OLA says and the differences between them. The problem question is testing your ability to work through the statutes. Remember there is an annotated version of both statutes in the book (also available to download and print from the ORC) and a table outlining 'at a glance' the key differences between the Act.
Joseph and Harry
Joseph and Harry are the first to try [the large bouncy castle] out. They both suffer minor cuts and bruises when the castle breaks free from its moorings and lifts into the air. It later turns out that it had not been appropriately tethered to the ground. Unfortunately, despite assuring Jake, the club's youth worker, when he phoned to book the castle, that they had the necessary documentation, Elsinore's public liability insurance had expired two months before the accident.
The first thing you need to establish is whether Joseph and Harry are visitors or non-visitors. It is likely that they are visitors. However, you should not assume this. You need to establish why they would be considered visitors, that is that they have been invited on or have been given (or are treated as having been given) permission to be on the property.
This means that you then need to consider their claims under the Occupiers' Liability Act 1957. As their claim is under the 1957 Act, the local authority owes them a common duty of care (s2(1)), 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' (s2(2)). You then need to consider if the council has discharged this duty; put another way, whether they are in breach. The bouncy castle appears to be unsafe, but the question is whether the danger it posed can be attributed to a failure by the club to take reasonable care. This may depend on whether it was the club or Elsinore who set up the bouncy castle and whether the club made any effort to see that it was attached securely.
If you conclude that the club cannot be held liable for the dangers posed by the bouncy castle, a second question is whether the council will be liable for the negligence of the independent contractor. Although usually an occupier will not be liable for the negligence of an independent contractor (s2(4)(b), following Gwilliam v West Hertfordshire Hospital NHS Trust [2002], a defendant occupier may be liable for a third party's wrongs. In that case it was held that there was a duty to check that the independent contractors had appropriate liability insurance but, on the facts, it had not been breached. The question you need to consider then is whether Jake has done enough to discharge this duty. Stronger answers would make clear that despite Gwilliam there is room for discussion here – for example, do you think it is important that the accident has taken place at a council run after school youth club?]. Concerns about discouraging beneficial activities have meant that Sedley LJ’s dissent has been preferred (though as a dissenting judgment it does not form part of the ratio of the case) – see Glaister v Appleby-in-Westmoreland Town Council [2009].
Iris
In the chaos that follows, Iris wanders off alone. She is too young to be a member of the club and so doesn't know her way around the buildings. She is seriously injured when she falls down a flight of stairs after going through a door marked ‘Private: No Unauthorised Entry’.
The key issue to establish here is whether Iris is a visitor or a non-visitor as the 1957 and 1984 Acts say different things about 'warnings'. You should consider Iris’ position under both Acts. If she is a visitor, an occupier may discharge their duty by giving a warning of the potential danger (s2(4)(a)). However, a warning will be sufficient to discharge an occupier's duty to a particular visitor only if, in all the circumstances, it is enough to enable that visitor to be reasonably safe – a sign saying 'Private: No Unauthorised Entry' is unlikely to be sufficient, especially as the premises in question is a youth club and the visitors most likely to be children. Although, does it make a difference here that Iris is too young to join the club? Even if the notice alone is not enough to discharge the club's duty of care, you must still ask whether there has been a breach. You are not told that the stairs are particularly steep or dark, so this is far from clear.
If Iris is a trespasser – remember a visitor's status may change if they go beyond the extent of the permission given to them (as is clearly the case here) – the 1984 Act will apply. Here, assuming a duty can be established (you'd need to work through the steps to establish this), all the occupier needs to have done is take 'reasonable steps' to bring the risk (assuming it is one, see further below) to her attention. However it is not clear that the occupier would owe Iris a duty of care – is the risk one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection? Again you are not told of any special danger posed by the staircase. If there is none, then no duty will be owed.
If you come to the conclusion that the council does owe Iris a duty of care, the council can discharge their duty by giving a warning – you need to consider whether they have done this – after all the sign does not specifically mention the danger of the stairs (the 1984 Act, unlike the 1957 Act, does not make special allowances for children).
Frank and Bill
Meanwhile Frank and Bill (who are members of the club) have sneaked off to play football. After a particularly poor shot at goal their ball lands on a flat roof. Although they know the roof is 'out of bounds', as everyone is busy at the open day, they decide to climb onto the roof to retrieve it. As they do so one of the skylights breaks. Bill falls through the roof hitting his head hard, causing him to lose his hearing.
Here you are told that Frank and Bill are members of the club and so at first glance they would appear to be visitors under the 1957 Act meaning that the council owes them a common duty of care. You do not need to repeat your discussion above (simply refer to it). However, an occupier can restrict their duty, as appears to have been done here (by making the roof 'out of bounds'). Tomlinson v Congleton Borough Council [2004] would suggest that once they are on the roof they are trespassers. If this is the case you will need to work through the requirements of s1(3) 1984 Act. It is likely that, in contrast to Iris above, the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection – although, of course, this does not mean that they are necessarily in breach of this duty. You are not given much information about this. Do not make up new facts. Rather state the legal issue – that is, that in order for there to be a breach the occupier needs to have fallen below the standard of care expected of them – and consider which way this is likely to go on the facts given.
Finally, even if a claim can be made out under the 1984 Act, it is likely that Bill would be found to be contributory negligent (see chapter 10 and, in particular, the case of Young v Kent County Council [2005]).
Conclusion
Finally, avoid lengthy conclusions: a crisp summary of the outcome of your analysis is sufficient.