Tort - Seminar 13 by Claire Turner

Problem Scenario One After the injury which Melanie sustained in the park owned by Seaside Borough Council (in Seminar 12), the Borough Council sent two employees, Fred and Tom, to repair the damaged wall. They repaired the wall as instructed, but, as it was a hot day and it was their lunch break, they decided to spend an hour cliff jumping into the sea below. They have carried out such an activity many times before with their friends during the weekend and have never come to any harm. However, Tom slipped and landed on the cliff side causing him serious injury. Advise Seaside Borough Council as to its liability in respect of Tom's injuries.

claire43 — 2021-01-25 20:27:23 UTC

Problem Scenario TwoBirkston Borough Council owns the John Smith Memorial Park. The council has long been aware of a problem with people taking short cuts across the park late at night. It is constantly putting up higher gates and mending broken fences. James, aged 20, took a short cut across the park late one night after the park had closed. To gain entry to the park, he had to climb over a very high gate on one side and break through a fence on the other side. On his way across the park, James fell down an exposed trench which had been dug by council workmen earlier that day, to allow for a new drainage system in the park. As a result of his fall, James suffered a broken neck.Advise Birkston Borough Council, which is facing a claim from James.

claire43 — 2021-01-25 20:27:46 UTC

Link to Prezi

claire43 — 2023-01-10 09:36:14 UTC

Take care when descending down the steps which may beslippery when wet. Cliff jumping is strictly forbidden.Seaside Borough Council cannot accept liability for any injuryhowsoever caused.”

claire43 — 2023-01-10 13:22:52 UTC

2025-01-21 14:38:35 UTC

Fred and tom are employees of the council - can be classed as skilled workers -IMF International lTD v Magnet Bowling Ltd - Council could argue that they should not be liable as they had previously carried out cliff jumping before and knew the dangers and were sent out to repair the wall, not to jump off the cliff.

Employees so they are likely to have knowledge of the sign "Cliff jumping is strictly forbidden" - Could argue the council did not breach their duty?

Step 1 - visitor/ trespasser

claire43 — 2025-01-21 14:40:21 UTC

Visitor employee at first when fix wall but then when they ignore the sign and step onto the cliff, they do not have permission to be there (Robert Adie)

Step 2- OLA 84 s1(3) - trespasser

claire43 — 2025-01-21 14:49:52 UTC

Herrington - common duty of humanity

s1(3) - a) aware of the danger? Know its a cliff. Defence - obvious danger (Ratcliff) In any event a warning was provided

b) Are the trespassers in the vicinity? Yes as they know people are cliff jumping. Not told expressly in the scenario, but actual knowledge is required (Ratcliff) rather constructive.

c) Reasonably expected to offer protection - defence will argue - sign (Tomlinson v Congleton) - social utility value of the park will be more relevant than irresponsible visitors

Have council done everything they could - they have built the wall and put up a sign. Cost precautions will be relevant (Tomlinson) - Security guard?

Volenti - contributory negligence - liable for their own injuries.

2025-01-21 14:50:33 UTC

Was the person a visitor or trespasser-

Trespasser- They were never permitted or invited to be on the land

Duty to trespassers 1(3)-

. Council were aware of the danger (uncovered trench that their workers dug)

. They know trespassers frequently enter into the vicinity of the danger. They wouldn't classed as implied visitors as the fence and wiring makes it clear they do not have permission to enter the park.

. There was a risk of personal injury and they didn’t take reasonable steps to warn people of the risk or physically stop them from walking into it

Breach-

. The council didn’t cordon off or place danger signs in the vicinity of the danger and knew trespassers would enter the premises at night when visibility was low

Volenti - assumed risk himself - contributory neg and damages will be reduced.