Based from the facts of the case, Greg was a visitor of the local theme park that was owned by Launchester District Council or LDC. During his visit, Greg decided to climb and jump from the harbor wall to land into the sea, despite the warning that such structure is dangerous. As a result, he struck his head on the wooden post causing him to become tetraplegic.
The first legal issue in this case whether LDC is a legal owner or physical controller of the old habor wall. The second issue is to determine whether Greg is a legal visitor to the old harbor under the definition of the Occupiers’ Liability Act 1957 or a non-visitor under the provisions of the Occupiers’ Liability Act of 1984. The final issue that has to be resolved is whether LDC breached the duty of care to Greg as a visitor.
Based on the facts of the case, LDC is the owner the park wherein the old harbor is part of the theme park. Despite the warning sign on the old harbor which states “No admittance”, Greg still decided to enter the premises. Clearly, the public has been warned that the structure is dangerous based on the twin warning notices which state “Do not climb onto the harbour wall. Diving from this structure is forbidden”.
Initially, Greg is considered as a visitor since the theme park is open to the public. The liability to lawful visitors is laid down by the Occupiers’ Liability Act 1957 (OLA 1957), which imposes a duty of care that is similar in the standard and scope to the common law duty of care. In the given scenario, Greg was considered as visitor of the park the moment he entered the park’s premises. Thus, LDC owes Greg a duty of care under OLA 1957 and shall be liable for any injury suffered by the visitor within the park’s premises.
However, the succeeding acts of Greg in entering the forbidden premises of the park and jumping of the harbor wall despite the warning notices that such structure is dangerous makes him a trespasser. Visitors of the park are required to abide by the rules and regulations of park administrators. Hence, the act of Greg in climbing the harbor wall and diving from the structure brought danger to himself.
Such acts were done out of his own free will and volition despite the clear warning notices of the park. Greg was informed beforehand that the structure is dangerous which may cause him serious harm. However, despite such notice, Greg still decided to climb and dive from the wall. In such an instance LDC no longer has the duty of care to Greg as defined under the provisions of OLA 1957. Instead the Occupier’s Liability Act 1984 (OLA 1984) shall be applied in this case. OLA 1984 imposes no general duty of care, but lays down the circumstances in which the duty will arise, and then defines a duty of lower standard and narrower in scope than that owed to lawful visitors.
The liability under OLA 1984 is hard to establish since the danger must be due to the state of the premises and not the claimant’s activity on the premises. However, in the case of Greg, any claim that is filed against LDC will be denied for the reason that Greg was fully aware of the dangerous state of the harbor wall based on the warning notice, yet he still insisted on jumping over it. In the case of Donoghue v. Folkestone Properties, Ltd., the High Court ruled that while trespassers may occasionally succeed in claims under the OLA 1984, the claims of adults will almost always fail, unless there is evidence that will show that there is some hidden trap.
However, in the case of Tomlinson v Congleton Borough Council , the Court of Appeal allowed a claim by an adult trespasser in respect of a perfectly obvious risk, was subsequently overruled by the House of Lords. The ruling in the case of Tomlinson was applied and extended in the case of Evans v. Kosmar Villa Holidays , where the High Court ruled that there is no duty to protect persons against obvious risks shall equally apply where a duty will otherwise arise from a contract or under the OLA 1957, unless there is evidence that will show that they do not have an informed choice or lack capacity.
In the case of Wheat v E Lacon and Co Ltd. , Lord Denning gave the legal definition of the term “occupier” during his speech, where an individual who has a sufficient degree of control over premises that must ought to realize that any failure on his part to use care may result in injury to a lawful visitor. This means that any person who has adequate control over the premises to the point that such person is expected to be aware that his or her lawful visitors may be exposed to danger or harm due to his lack of care. Such duty of care defined under the law can be shared between one or more occupiers, who shall be jointly and severally liable to their visitors in the event that these occupiers shall fail to exercise the duty of care, and thereby causing harm or injury to the lawful visitors.
Based on the facts of the case the park is owned and controlled solely by LDC, which makes him fall under the definition of “occupier” under OLA 1957. OLA 1957 has defined the term “premise” under section 1(3)(A) which states that it is not only limited to land and buildings, but will also covers any fixed or moveable property such as vessels, vehicles or aircraft. With this definition, it is clearly established that the theme park fall under the legal definition of “premises” considering that it is a fixed structure.
The term “visitor” under the provision of s(1)(2) of OLA 1957 is defined as an ‘invitee or licensee”. Based on this definition under this Act, Greg was a lawful visitor who has been given the permission to be on the premises. At this given instance, LDC, being the occupier, had an owed Greg the duty of care or the obligation to ensure safety while he is inside the park’s premises. The park placed a warning notice on the structural damage on the harbor by informing the public that the harbor wall is dangerous. Thus, no visitor is allowed to enter such premises based on its dangerous condition. The moment Greg entered the forbidden premises, he became a trespasser. Thus, LDC is no longer required to exercise the duty of care required under OLA 1957 since there was no negligence on its part when it provided warning notices to the public.
OLA 1984 is applicable in the case of Greg since he was originally a lawful visitor, but later became a non-visitor who is covered under such Act. The duty of LDC to protect Greg disappeared the moment Greg became a trespasser of the forbidden premises of the park. Here, there is a clear showing that Greg violated the rules and regulations of the park when he disobeyed the warning signs. The difference between a lawful visitor and a trespasser was explained in the case of Tomlinson, where in Lord Hoffman along with Lord Longmore stated that Tomlinson became a trespasser when he chose to indulge in an activity that was inherently dangerous, where the premises are free from any danger. Hence, a person can be considered as a lawful visitor if he or she is using the premises for their intended purpose. However, such visitor becomes a trespasser if he or she steps beyond this point, wherein a child who is permitted to use the defendant’s lake for canoeing will become a trespasser when he dives into the lake to swim, despite the fact that he is aware that he is forbidden from doing so. This was the same ruling in the case of R v Jones & Smith and Tomlinson . This was the similar ruling in the case of Ratcliff v McConnell and Harper Adams College , where the College was not liable for the damages suffered by claimant since the activity of diving into the pool was unsafe after the claimants and his friends became drunk and decided to dive into it.
In the case of Esdale v Dover District Council, the High Court ruled that there must be an objective test should be applied in order to determine whether an occupier has taken such steps as are reasonable to see that visitors are reasonably safe. LDC shall only be held liable to pay damages for the injuries suffered by Greg if there was failure to comply with section 1(3) of OLA 1984. These three conditions are: The first condition is that LDC must have knowledge of the danger within the premises. Based on the facts of the case, LDC was not remiss of its duty when it posted warning notices that the structure was dangerous. The second condition is that LDC must be aware that Greg was inside the vicinity of the dangerous area. In this instance, LDC was not aware that Greg entered the harbor wall and jumped over it since the area was closed to the public. The third condition is that the risk that may arise from the harbor wall is one which LDC may reasonably expect in order to offer Greg a certain level of protection. Therefore, since LDC has fully complied with the conditions set forth under Section 1(3) of OLA 1984, it cannot be held liable for Greg’s injury.
Bibliography:
Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231 [2003] WL 270891 (CA)
Esdale v Dover District Council [2010] All ER (D) 73
Evans v. Kosmar Villa Holidays [2008] 1 All ER 530
R v Jones & Smith [1976] 3 All ER 54
Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2679
Tomlinson v Congleton Borough Council [2003] 3 WLR 705 (HL)
Wheat v E. Lacon & Co. Ltd [1966] AC 552 (HL) Book
Emmet, D., Remedies (16th edn, Oxford University Press 2012)
Law/ Statute
Occupiers’ Liability Act 1957 (OLA 1957)
Occupiers’ Liability Act 1984 (OLA 1984)
