OLA

Q1. Trade visitor injured-visitors injured, OLA 1957

Pursuant to the question, we note that Dez, Tom, Dick and Harry were injured on Nathan’s premises.
Dez was injured while fixing the wooden repairs, whilst, Tom, Dick and Harry were injured during the
wedding taking place at Nathan’s country home. Therein, we need ascertain whether the parties can
initiate a successful claim against Nathan, under tort law of negligence such that they are compensated
for the injuries sustained to them.

Therein, in order to establish a claim under tort law of negligence, the claimant have to prove that the
defendant owed him a duty of care. The principle of duty of care (DOC), was initially established in the
DONOGHUE V STEVENSON, which was revised in ANNS V MERTON, overruled in MURPHY V
BRENTWOOD and lastly extended in CAPARO V DICKMAN. However, when a person suffers injury
because of the state of the premises, the DOC, is established by relying on the Occupiers Liability Act,
1957 (for visitors) and Occupiers Liability Act, 1984 (for trespassers).

Subsequently, we will have to prove that Nathan owed a DOC to Dez, Tom, Dick and Harry. Therein, in
order to establish the DOC, we need to determine whether the claimants were visitors or trespassers.
Pursuant to s 1(2) OLA, 1957, visitor is any individual who meets the definition of a visitor under
common law such that they had express, implied or lawful authority to enter the premises. Thus, in the
case of Dez we note that he was called by Nathan for the fixing the repairing, whilst Tom, Dick and Harry
were invited to attend an event on Nathan’s premises. Therefore, the parties were given express
permission to enter the premises. Since, the claimants were visitors, OLA, 1957, will be applicable in our
case. Thereafter, we will need to ascertain whether Nathan, will be considered an occupier of the
premises where the claimants were injured. Pursuant to S 1 (2) of OLA, 1957, an occupier needs to meet
the definition laid down by the common law such that the individual has a control of the premises at the
time when the claimants were injured. Pursuant to S 1(3), OLA, 1957, premises are widely defined as
fixed and moveable structures (WHEELER V COPAS). Therefore, as per the case facts, Nathan was in
control of the premises when Dez was called for the repairing and was injured. Furthermore, Nathan
was even in control of the premises when TDH were attending an event and were injured.

Thus, as per the S 2 (1) and (2), OLA, 1957, the occupier of the land directly owes a duty to the visitors
such that the occupier ensures that the visitors are reasonably safe for the purpose of their visit.
Pursuant to Dez’s case, we note that his purpose to visit was to repair whilst the purpose of visit of TDH
were to attend an event they were invited to attend. Therein, Nathan had the duty to ensure the
premises was reasonably safety for the visitors. Since, the parties are injured, the DOC will be
automatically established. However, Nathan can discharge his DOC in certain ways. In the case of Dez,
Nathan rely on S (2) (3), OLA, 1957 and will argue that Dez was a trade visitor and got injured while
exercising his profession (ROLES V NATHAN). Therefore, his DOC should be discharged and he should
not be liable. Nevertheless, as per the case facts, it is seen that Dez was not injured while carrying out
his work, rather he was injured by the unstable table. Therefore, DOC will not be discharged.

In respect of the TDH, Nathan will rely S 2 (4) (b) OLA, 1957, and argue that his DOC should be
discharged as the guests were injured due to the negligent work of an independent contractor. The
courts use a narrow approach while discharging the DOC due to negligent work of an independent
contractor. Therefore, Nathan will have to prove the three prongs to discharge his duty which are that
the work required him to hire an independent contractor, he took reasonable steps in hiring a
competent contractor and lastly, if the work was non-technical, Nathan fulfilled his duty of supervision.
According to the case facts, we note that a contractor was needed to be hired for the repairing, since an
average person does not have a skill of a carpenter. Furthermore, it can be seen that Nathan did not
take reasonable steps when he hired Dez. He did not take Dez’s work history, nor did he call any of his
references to ensure that Dez was a skillful, competent carpenter. It is also seen that the Nathan called
Dez as his work card was in Nathan’s mail box. There were many errors on Dez’s work card, and still
Nathan called him to work for him. Therein, reasonable steps were not taken by Nathan to ensure that
he hired a competent independent contractor. Moreover, as it was a technical work, Nathan still had the
duty to supervise Dez’s work on some extend. We note that the question is silent, thus, we will assume
that Nathan did not supervised the work of the contractor. Since the last two conditions are not met,
Nathan will not be able to discharge his DOC owed to TDH.

Since, Nathan’s DOC is established in both of the cases, we will need to determine whether Nathan
breached his DOC by falling below his standard of care. Pursuant to BLYTH, breach of DOC can be seen
by determining the standard of care and whether the person fell below the standard of care. Reliance
will be placed on MULLIN V RICHARDS, therein, the standard of care for Nathan will be that of an
average occupier. Therein, to ascertain whether Nathan fell below the standard of care of an occupier,
the courts will consider various factors (BOLTON V STONE) such as the seriousness of the injury,
likelihood of the injury, cost of protection and public benefit.

In the case of Dez, it is seen that he was injured by keeping his drill machine on the table in Nathan’s
home. We note that the table was unstable and it is very common to have such tables or furniture in a
house hold. However, it is not common for the hired workers to keep heavy machinery, such as the drill
in our case, on the table, rather such machineries are kept on the floor. Furthermore, it is also noted
that keeping such a high standard for the occupier will not be prudent. Thus, Nathan did not fell below
the standard of care of an average occupier of the household. On the other hand, even if Nathan’s
breach was proven, it can be seen that since Dez was negligent, Nathan’s chain of causation would have
been broken.

However, in the case of TDH, it can be seen that Nathan was unreasonable to hire an incompetent
contractor for the repairs, when he knew that guests were invited to attend an event at his premises.
Therefore, Nathan fell below the standard of care as he did not reasonably ensure the safety of the
premises for the guests.

Therefore, as Nathan breached his DOC to TDH, we will need to establish a chain of causation for the
breach which caused the injuries to the visitors. In order to establish the chain of causation, the courts
apply the but for test (CHELSEA), but for Nathan not hiring an incompetent carpenter, the TDH would
not have been injured. Since, it is a single act which caused the harm, chain of causation will be
automatically met.

Consequently, the courts will now determine whether Nathan will be liable to compensate the injuries
suffered by TDH. As per the WAGON MOUNT NO 1 CASE, the courts only award damages when the
defendant reasonable foresees the type and the way of damages. We note that the type of injury
sustained by TDH are personal injury which was reasonably foreseeable by way of not hiring a
competent carpenter to fix the balstander. Therefore, TBH will be compensated for the injuries occurred
to them.
02-2-2022

Q2. As per the question, it is seen that Cathy and Ben, children of Abby, have suffered injuries on the
premises of Freeway-super market. Furthermore, an employee of Freeway, Wayne, have also sustained
injuries on the Freeway’s premises. Therein, we need to ascertain whether the parties can initiate a
successful claim against the Freeway such that the parties are compensated for their injuries under the
tort law of negligence of the occupier.

In order to establish a claim for the injuries, caused on the premises, under tort law of negligence, the
claimants will have to prove the duty of care (DOC) owed to them on the part of the occupier of
Freeway. Thereafter, such a DOC was breached and caused the injuries. Since the claimants are injured
in Freeway premises, they will have to establish the DOC under the Occupiers Liability Act, 1957 (for
visitors), or Occupiers Liability Act, 1984 (for trespassers). The law of DOC was developed under
common law was considered to be rigid and unsatisfactory, under occupier’s liabilities, due to the
categories of DOC for different entrants. Thus, the Parliament enacted the Occupiers Liability Act, 1957
(OLA ’57) and later the Occupiers Liability Act, 1984 (OLA ’84) to simplify the occupier’s duties in relation
to the visitors, children, trespassers and etc.

In order to establish a DOC, of an occupier, we first need to identify whether the claimants are
considered to be visitors or trespassers as different act applies to them. Pursuant to S 1 (2) OLA ’57, a
person is deemed to be a visitor, if satisfies the definition of the visitor under the common law. Therein,
as per the common law, a visitor is someone who has an express, implied or lawful permission to enter
the premises. However, pursuant to CALGARTH, if a person exceeds the permission, then the visitor
becomes a trespasser. Therefore, we note that in respect of Cathy, she had the implied permission to
enter the supermarket, since all individuals have an implied permission to enter a supermarket to shop.
However, when she entered the storage area, Cathy exceeded her permission and became a trespasser.
Therein, in relation to Cathy, OLA ’84 will be applied.

In respect of Ben, we note that he was also injured in the storage area, therein, he will also be
considered a trespasser and OLA ‘ 84 will be applied.

Nonetheless, in respect of Wayne, we note that he had express permission since he was an employee of
the Freeway, and employees have permission to enter the storage area as per the requirement. Thus,
law of OLA’57 will be applicable on him.

Thereafter, we need to identify the occupier and whether the premises satisfy the definition of premises
under the statue. Reliance will be placed on s 1 (2) of OLA’57 which states that an occupier must meet
the definition set out in common law such that he has the control of the premises ( WHEAT V E LACON).
It is seen that the person running the Freeway will be an occupier as they have control of the premises,
thereby we will initiate a claim against Freeway. Furthermore, pursuant to S 1 (3) of OLA’ 57, the storage
area will fall within the definition of premises such that it is fixed or moveable structure (WHEELER V
COPAS).

(Each Party will be discussed separately as per the DOC owed to them)

Cathy
In order to establish a DOC for the trespasser, reliance will be placed on OLA’84, for which three points
need to be proved. Pursuant to S 1 (3) OLA’ 84, the duty of the occupier is established when he is aware
of the danger and have reasonable grounds to believe that it exists, knows or ought to know that the
trespasser is in the vicinity of danger or ought to come, and lastly, reasonably provided protection to the
trespasser. Therein, we note that the occupier reasonably believed that there was danger as

20-3-2022

Q1. Children- trespasser- 1984- DOC not established

Pursuant to the question, we note that Nick and Olly have suffered from injuries on the premises
controlled by Guile Ltd. We need to determine whether they can initiate a successful claim against Guile
Ltd under the tort law of negligence. Therein, in order to file a claim against Guile Ltd, Nick and Olly will
have to establish duty of care (DOC) which was owed to them, the DOC was breached, causation and the
damages.

Since the injuries were suffered on the premises, they will have to establish the DOC under the
Occupiers Liability Act, 1957 (for visitors), or Occupiers Liability Act, 1984 (for trespassers). The law of
DOC was developed under common law was considered to be rigid and unsatisfactory, under occupier’s
liabilities, due to the categories of DOC for different entrants. Thus, the Parliament enacted the
Occupiers Liability Act, 1957 (OLA ’57) and later the Occupiers Liability Act, 1984 (OLA ’84) to simplify
the occupier’s duties in relation to the visitors, children, trespassers and etc.

Therein, we will need to identify whether the person injured was a visitor or a trespasser. Pursuant to S
1 (2) of OLA’ 57, an individual will be a visitor if he falls within the definition of a visitor under the
common law such that an individual had an express or implied permission, or a lawful authority to enter
the premises. However, if an individual exceeds his permission, then he becomes a trespasser
(CALGARTH CASE). Furthermore, pursuant to S 1 (2) OLA’84, a trespasser is someone who does not
permission or exceeds his permission. As per the question, it can be seen that Nick and Olly did not have
any permission to enter fairground, hence they will be considered a trespasser.

As Nick and Olly are trespasser, the DOC will be established under OLA ’84. However, we will first need
to determine who will be considered an occupier of the premises and whether the area where the
claimants were injured will be considered premises or not. Pursuant to the S 1 (2) OLA’57, an occupier
needs to meet the common law definition of an occupier such that an individual is in control of the
premises (WHEAT V E LACON). As per the facts, Lisa owns the fairground but as Guile Ltd was in charge
of the development of the fairground, they will be considered the occupier of the land. It is seen that
Guile Ltd were the main contractors and in control of the area during the development process.
Although, a sub-contractor was hired for installing some features on the premises, he did not have
sufficient control on the land. Furthermore, as per S 1 (3) OLA’57, premises are fixed or moveable
structures which also includes vessels, vehicle and aircrafts (WHEELER V COPAS). Thus, the area where
the boys were injured will be considered premises since it is a fixed structure.
Therein, in order to establish a DOC for the trespassers, reliance will be placed on S 1 (3) OLA ’84 which
lays out 3 conditions that should be met by an occupier; the occupier knows or reasonably believed that
the danger existed, the occupier knows or reasonably believed that the trespasser is in the vicinity of the
danger or may come in the vicinity of danger, and lastly, the occupier did not provide reasonable
protection from the danger. Pursuant to the question, the fairground was a construction site, therefore,
Guile Ltd was aware about the dangers in the construction site. Furthermore, we note that the
fairground was surrounded by the barbed wires and the notices of “no entry” which shows that the
Guile Ltd knew that there were trespassers on their area. Thus, which is why the notices were hanged
and the area was surrounded by the wires. We also note that Guiles Ltd reasonably protected the area
by not only surrounding the parameter of the construction site but by also hanging the notices of
“Danger. Site Closed. No entry”. Although, Maria did not lock the door during her visit, Olly and Nick
could not straightforwardly open the door, as seen, they used some boxes to climb up and pull back the
bolt. Therefore, the door was reasonable closed and could not be opened by pushing it. Thus, since the
last point is not met, DOC for Nick and Olly will not be established.

Furthermore, as per the question, it is even seen that Olly and Nick were injured while jumping off the
chute which is due to their activity on the premises, rather than the injury being caused from the state
of the premises. Therein, reliance will be placed on TOMLINSON V CONGLETON, where occupier was
not held liable since the injuries were caused by the risk of the claimant’s own action and activity.

Q2. OLA57- Contractor- DOC not discharged-liable- OLA 84-not liable

As per the question, we note that Algy and Delia have suffered injuries on the premises of Do-U-Down
Garage (Garage). We need to ascertain whether both of the parties can initiate a successful claim under
the tort law of negligence to recover their losses. Therein, they will need to prove a duty of care (DOC)
owed to them, was breached, causation and the compensation of the damages.

Since the parties are injured on someone’s premises, they will need to establish the DOC under the
Occupiers Liability Act, 1957 (OLA ‘57) for visitors, or Occupiers Liability Act, 1984 (OLA ‘84) for
trespassers. The law of DOC was developed under common law was considered to be rigid and
unsatisfactory, under occupier’s liabilities, due to the categories of DOC for different entrants. Thus, the
Parliament enacted the Occupiers Liability Act, 1957 (OLA ’57) and later the Occupiers Liability Act, 1984
(OLA ’84) to simplify the occupier’s duties in relation to the visitors, children, trespassers and etc. As the
parties have suffered different injuries, each party will be discussed separately.

1. Algy

We need to identify whether Algy will be a visitor or trespasser. Pursuant to S 1 (2) OLA ’57, a
person will be a visitor if he satisfies the definition of a visitor laid out in the common law such
that he has an express, implied, or lawful authority to enter the premises. Furthermore,
pursuant to S 1 (2) OLA ’84, an individual is a trespasser if he doesn’t have any permission to
enter the premises or exceeds his permission (CALGARTH). According to the case facts, Algy did
not had any permission to enter into the workshop as he was an employee of the garage.
However, an argument will be raised that when he walked in the garage, the receptionist did not
stop him. Furthermore, the mechanic, the representative of the garage, even called him in to
show the faults in the car. Hence, it will be considered as an express permission and will make
Algy a visitor rather than a trespasser.

Since, Algy is a visitor, reliance will be placed on OLA ’57 to establish the DOC for the visitor.
Subsequently, we will first need to determine the occupier of the premises and whether the
area where Algy was injured, falls within the definition of the premises under the statue.
Pursuant to S 1 (2) of the Act, an occupier needs to meet the common law definition of an
occupier such that the individual is in control of the premises (WHEAT V E LACON). As per the
facts, Do-U-Down person is in control of the whole garage, thus, Do-U-Down will an occupier.
Furthermore, to determine whether the area fell within the definition of premises, reliance will
be placed on S 1 (3) of the act, which widely defined the premises as any fixed, moveable
structures which also includes vessels, vehicle or aircrafts (WHEELER V COPAS). Therefore, the
area where Algy was injured will be considered premises.

Consequently, as Algy is visitor, pursuant to s 1 (2) and (2) of the act, a statutory DOC owed by
the Do-U-Down Garage will be automatically established such that the garage had to ensure that
the visitors were reasonable safe for the purpose of the visit on the premises. We note that
Algy’s purpose of visit was to check his car and the garage had the duty to ensure the premises
was safe.

Pursuant to the case facts, Algy was injured as the ramp was corroded and collapsed on his legs.
Nonetheless, in December 2012, the garage hired an independent contractor, Goeasy Ltd, for
the annual inspection of the ramp and it was reported to be fault free. Therefore, by relying on S
2 (4) (b) of the act, the defendant can raise an argument to discharge his DOC on the grounds of
negligent work undertaken by an independent contractor. Therein, causing injury to a third
party (Algy). However, the defendant will have to prove 3 prongs to discharge the duty of care
which are that there was a need to hire an independent contractor, the occupier took
reasonable steps to hire a competent contractor and lastly, the occupier thoroughly supervised
the if the work was non-technical. According to the case facts, we note that there was a need to
hire a contractor for the inspection of the ramp as the mechanics are specialized in car related
issues. Furthermore, we note that Goeasy Ltd is out of business. Therefore, assuming that
Goeasy Ltd, is out of business due to the poor or unsatisfactory performance of their skills, it can
be seen that the garage did not hire a competent contractor. It can even be seen by the fact that
corrosion takes time and when Goeasy Ltd, inspected the ramp, they did not find any corroded
area on the ramp. Furthermore, the question is silent on whether the garage asked and
investigated their work history. Therefore, we will assume that none of such was done by the
Do-U-Down Garage. Thus, the second prong will not be met and the DOC of the garage will not
be discharged.

Therein, as the DOC is established, we will need to prove that the DOC was breached by the
garage. Pursuant to BLYTH, the breach of DOC is determined by the standard of care and
whether the defendant fell below the standard of care. Pursuant to NETTLESHIP, the standard of
care will be that of an average occupier of the Garage. Therein, an average garage occupier
ensures safety so that even garage staff is safe to used the machinery or the equipment. In
order to ascertain whether occupier of the garage fell below the standard of care, the courts
consider every aspect such as the seriousness of the injury, the likelihood of the injury, the cost
of protection and policy reasons (BOLTON V STONE). Therein, we note that both of Algy’s legs
are severely injured, and if there was a staff member in the place of Algy, that person would also
have been severely injured. Furthermore, ramps in the car workshops are regularly used so that
the mechanics can work from below. Therein, if the ramp collapse, the car will also fall down
which will not only cause severe personal injury, or loss of life but also cause property damage.
Moreover, by setting such a precedent will ensure that such accidents will not happen in future.
Therefore, by not hiring a competent contractor to ensure safety within the workshop clearly
shows that the occupier of Do-U-Down garage fell below his standard of care. Thus, he breached
the DOC owed to Algy.

As breach is proven, we will have to prove the chain of causation which consists of factual
causation (CHELSEA) and legal causation. In order to meet the factual causation, but for test is
applied i.e. but for the occupier of the garage not ensuring safety in the workshop, Algy would
not have been injured. Since there was one act which caused the harm, the chain of causation
will be established.

Thereafter, to recover for the injuries sustained to Algy, the courts will rely on WAGON MOUNT
NO 1 CASE, which held that the defendant is only liable for the foreseeable damages. Hence, the
type and way of damages should be foreseeable. Consequently, we note that personal injury
caused by the ramp is foreseeable, hence, Algy will be compensated for his injuries.

2. Delia

In respect of Delia, we note that she ran and entered the workshop when she heard Algy’s
scream, slipped because of the spilled oil and sustained head injuries. In order to determine
whether she can claim compensation for her injuries, DOC needs to be established.

We will first have to identify whether Delia is a visitor or a trespasser to apply the law
accordingly (the law of visitor and trespasser are mentioned above).Therein, it is seen that the
clients were not allowed in the workspace of the car repairs. Hence, she was not given any
express or implied permission to enter the workshop. She also did not have any lawful authority,
as rescuers or police have such authority. Therefore, Delia will be a trespasser.

Since Delia is a trespasser and is injured on the garage premises (as mentioned above), the
occupier of the garage owed the DOC to Delia. In order to establish the DOC, reliance will be
placed on S 1 (3) OLA ’84, where the claimant will have to prove three prongs; the occupier
knew or reasonably believed that his premises was dangerous, the occupier knew or reasonably
believed that trespasser is in or come into the vicinity of danger, and lastly, whether the
occupier provided reasonable protection. Therein, it is seen that every garage occupier foresees
that his premises is dangerous based on the fact if the garage is being used to repair the cars.
Furthermore, we note that the occupier reasonably believed that there were trespassers on his
premises on grounds that he had hung the notice of “Garage staff only. No authorized
admission” on the door of the workshop. Furthermore, there was a door which prevented the
customers from trespassing in the workshop, even if the door was not locked. Therefore, it is
seen that the occupier provided reasonable protection to the trespasser by not only hanging the
notices that customers should remain in the reception area, but by also hanging up the notice
on the door to restrict the entry of customers. Delia’s act of entering the workshop shows that
she voluntarily assumed responsibility, hence, the DOC for Delia will not be established.
Furthermore, she will not be able to receive compensation for her injuries.

Q3. As per the question, we understand that Maria have suffered from certain injuries caused by the
caravan of Holiday Caravans UK Ltd. Furthermore, Jesse have died due to consumption of berries on the
Holiday Caravans UK Ltd (HC) premises. We need to ascertain whether Maria and Jesse’s estate can
initiate a successful claim against the HC under the tort law of negligence. Therein, the parties will have
to establish that the duty of care owed to them by HC was breached, the causal link between the breach
and the loss suffered and lastly whether their losses can be compensated. Each party will be discussed
separately.

a. Jesse’s Estate

Since Jesse died by consumption of berries on the HC premises, we will need to establish the
DOC
under the Occupiers Liability Act, 1957 (OLA ‘57) for visitors, or Occupiers Liability Act, 1984
(OLA ‘84) for trespassers. The law of DOC was developed under common law was considered to
be rigid and unsatisfactory, under occupier’s liabilities, due to the categories of DOC for different
entrants. Thus, the Parliament enacted the Occupiers Liability Act, 1957 (OLA ’57) and later the
Occupiers Liability Act, 1984 (OLA ’84) to simplify the occupier’s duties in relation to the visitors,
children, trespassers and etc.

In order to determine which act is applicable in Jesse’s case, we will need to ascertain whether
Jesse is a visitor or a trespasser. Pursuant to S 1 (2) OLA ’57, an individual is a visitor, if he falls
within the common law definition of a visitor such that the person has an express, implied
permission or lawful authority to enter the premises. However, pursuant to S 1 (2) OLA ’84, a
trespasser is an individual who does not have permission to enter the premises or exceeds his
permission (CALGARTH). According to our case facts, it is noted that Jesse entered a guarded
area by climbing up the fence, when a clear notice of “Keep out. Danger” was hanged. Therein,
he can be considered a trespasser.
However, an argument will be raised that Jesse is not a trespasser as he is a young child and the
principle of allurement will be applicable on him. As per the case facts, we will assume that Jesse
is below the age of 5 as Felicity, Jesse’s sister, was with him when they were exploring the area
and Maria gave Jesse a bath, when they were back. It is noted that normally mother baths their
young children, hence Jesse is a young child. Furthermore, reliance will be placed on
GLASGROW CORPORATION V TAYLOR (1922), which introduced the principle of “allurement” in
situations where young children are trespasser such that when children trespass because of
some attractions they are not trespassers, rather they are considered visitors. As per our case
facts, we note that Jesse was attracted to the berries, in the fenced area, therefore, he will be
considered a visitor pursuant to the concept of allurement.

Since Jesse is a visitor, OLA ’57 will be applicable for which we will first need to identify the
occupier of the area and whether the area meets the definition of a premises. Pursuant to S 1
(2) of the OLA ‘ 57, an individual is an occupier when the individual falls within the common law
definition of an occupier such that the individual has control over the area ( WHEAT V E LACON).
Furthermore, S 1 (3) OLA ’57, widely defined premise as fixed, moveable structured which also
includes vessels, vehicles and aircrafts (WHEELER V COPAS). According to our case facts it is
seen that Jesse and his family came to the caravan site which was owned and maintained by the
HC. Therefore, owner of the HC will be the occupier as they had the control over the land.
Furthermore, the area where Jesse eat the berries will be considered premises as per the statue.

Pursuant to S 2 (1) and (2) OLA ’57, the occupier of the land owes a duty of care to the visitors
such that he ensures the visitor’s safety within the premises for the purpose of their visit. This
DOC is automatically applied on the visitors for the occupancy duty (FERGUSON V WHELSH)
such that visitor suffers injury due to the state of the premises. Although, the occupier owes the
DOC for the visitors, but when children are involved, pursuant to S 2 (3) (a) OLA ’57, the occupier
needs to prepare the premises for children to be safe and has to take reasonable care as the
children do not understand the nature of risks. Accordingly, it is seen that HC advertised that
their camp site is ideal for children. Therein, they should have taken extra measures to ensure
that the premises were safe for children as they are adventurous and easily get attracted to
things in the surrounding.
However, the defendant can raise the argument by relaying on PHIPPS V ROCHESTER CORP,
that in situations concerning small children, the primary duty is of the parents of the children to
make sure their child is safe.
Furthermore, we note that the defendant can discharge the DOC by relying on S 2 (4) (a) and
argue that Jesse was given clear and visible warnings. We note that the warning “Keep out.
Danger” was hanged on the fence, however, it was not specific on basis that why the area is
dangerous. Furthermore, in cases of small children, the courts have declined to acknowledge
warnings for discharging the DOC. Therefore, DOC will be established.

Since, DOC is established, Jesse’s estate will need to prove that there was a breach of the DOC.
Pursuant to BLYTH, breach can be determined by the standard of care of the defendant and
whether the defendant fell below his standard of care. As per NETTLESHIP, the standard of care
of the HC occupier will be that of an average occupier of the campsite, open for families.
Therein, the occupier of camp sites which are open to families and children, reasonably ensures
safety within the premises. Rather than hanging signings, they make sure that doors are locked
or secured so that no family member may enter the unsecured area.
Subsequently, for determining whether the occupier fell below his standard of care, the courts
consider every factor as illustrated in BOLTON V STONE; the seriousness of injury, the likelihood
of injury, cost of protection and public policies. In our case, we note that the fence was not tall,
thereby, Jesse was able to reach the other side and ate the berries. Therein, the occupier should
have chopped off such plants which can injure other children’s health too as children are
attracted to such surrounding, and they tend to try fruits and berries. Furthermore, the occupier
should have ensured to secure the area such that no child can climb up the fence. The fence
should have been child proof i.e. the occupiers should have paid more money to raise the height
of the fences. Moreover, if the courts hold defendant liable for such breach of DOC, it will
ensure safety of children in holiday parks or public parks. Therefore, as per the above
arguments, occupier of HC will fall below his standard of care as they even claimed that their
camp site is children friendly.

Thereafter, the causal link between the breach and the damage caused needs to be proven. In
order to establish chain of causation, as per CHELSEA CASE, but for test is applied i.e. but for the
occupier not ensuring safety on his premises, Jesse would not have consumed the berries.
Thereby, the chain of causation will be met.
Nonetheless, the defendant can raise the argument that there was an intervening negligent act
of the third party which will break the chain of causation. However, the chain is only broken if
the negligent act of the third party is beyond reasonable threshold of negligence. As per the
case facts, we note that Maria, Jesse’s mother was negligent as she knew that Jesse was feeling
sick because of eating too much berries and instead of taking him to a doctor she gave him a
bath and made him sleep. Therein, we note such action of the third party was negligent but it is
not beyond the threshold of negligence since, Maria did not know that there were poisonous
berries on the premises as the camp site was an ideal location of the children. Therefore, the
causal link will not be broken.

Since the causation is proven, we need to determine whether Jesse’s estate will be able to
recover the loss. Pursuant to WAGON MOUNT NO 1 CASE¸ only foreseeable damages are
awarded such that the type and way of the damages are foreseeable. Therefore, it is
foreseeable that a child can die by consuming poisonous berries, hence, Jesse’s estate will be
compensated for Jesse’s death.
However, the defendant will raise the defense of contributory negligence, set out in S 1 (1) of
the Law Reform (Contributory Negligence) Act, 1945, to reduce the amount of damages based
on the fact that Maria was negligent by not taking Jesse to the doctor when her child was clearly
unwell.

b. Maria

In respect of Maria, we note that she is injured because of the faulty hot tap of the caravan.
Assuming that she rented the caravan from the HC, we need to determine whether she can
claim for damages for the injuries caused to her. Thus, she will have to establish a DOC which is
breached by the occupier under the tort law of negligence.

To establish the DOC, we will first have to identify whether Maria is a visitor or an occupier. As
per the law discussed above, Maria has a permission to use the caravan as she is renting it,
thereby she will be a visitor. Furthermore, the occupier will be owner of the HC as they had the
control of the caravan and rented it to Maria’s family. Moreover, since the definition of
premises includes vehicle (as discussed above), the rented caravan will be considered a
premises.

Consequently, as discussed above, the occupier has a duty to ensure reasonable safety of the
premises for the purpose of visit. We note that Maria rented the caravan for the purpose to live
in it for a period of time and since the occupier failed to ensure that the caravan was safe for
living purposes, the statutory duty under S 2 (1) and (2) OLA ’57 will be automatically
established.
As the DOC is established we will need to determine the standard of care and whether the
occupier fell below it. Pursuant to the law discussed above, the standard of care will be of an
average occupier renting the caravans for living purposes. Furthermore, the occupier fell below
his standard of care as he did not ensure that the caravan was safe to use. Normally, before the
caravans are rented, the occupiers check everything, the engine, battery, tyres, the
compartments and also the bathroom areas to check whether the accessibility of water in the
caravan. When a person is living in a caravan, the occupier knows that the water taps will be
regularly used. Therein, if the occupier would have checked the taps of the caravan, he would
have fixed it before renting it to Maria’s family. Furthermore, if the defendant is held liable for
such negligent actions, it will serve as a good policy aspect in the society as the occupier will
always make sure to check whether the premises is functional or not before renting it out.
Thereby, the HC occupier fell below his duty of care.

Therein, we will now have to prove the chain of causation, for which the but for test is applied
(as discussed above) i.e. but for HC occupier not checking the water taps before renting the
caravan, Maria would not have sustained injuries due to the hot water. Therefore, since there is
one act one harm, chain of causation will be met.
Nonetheless, the defendant can raise the argument based that there was an intervening
negligent act of the claimant which can break the chain of causation. However, claimant’s
negligent act will only break the chain of causation if it is beyond reasonable threshold of
negligence (WIELAND CASE). As per the case facts, it is note that if one rents a caravan, they
assume that everything of the caravan is functional when a good payment is given for renting.
Furthermore, Maria did not foresee that the hot water tap was defective to such an extend that
it will burst out and burn her. Therefore, the chain of causation will not be broken.

In respect of the damages, reliance will be placed on WAGON MOUNT CASE and Maria will only
be awarded damages if the type and way of damages were foreseeable. It is noted that the type
and way of damage is foreseeable since, one can burn himself if the hot tap water is busted.
Therefore, she will be compensated for the injuries.
However, the defendant will raise the defense of contributory negligence under the Law Reform
(Contributory Negligence) Act, 1945 and argue that the claimant was also at fault when she
knew that the tap was defective and still used it. Therein, the damages will be reduced as per
the court’s discretion.