Tort - Seminar 13 - OLA - SW102 by Claire Turner

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 20:28:47 UTC

Problem Scenario OneAfter 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 20:29:07 UTC

Take care when descending down the steps which may be slippery when wet. Cliff jumping is strictly forbidden. Seaside Borough Council cannot accept liability for any injury howsoever caused.

claire43 — 2021-01-26 12:06:08 UTC

eleanorsmart789 — 2026-01-20 11:38:44 UTC

Seaside Brough Council is unlikely to have responsibility for Tom's injuries because his conduct falls outside the scope of his employment. Although he had been sent to repair the wall, he and Fred chose during their lunch break to engage in cliff jumping. This was an activity completely unrelated to their duties, undertaken for personal recreation, an obvious danger, and expressly prohibited by the council's warning signage. This is a deviation from their authorised tasks and therefore a ‘frolic of their own’ within the meaning of Hilton v Thomas Burton, breaking the link required for vicarious laibiltiy.

In terms of occupiers liability, Tom's decision to participate in a forbidden activity makes him a tresspasser, meaning the council's duty is limited under the occupiers liability act 1984. The risk posed by the cliff is an obvious natural danger, and the council had taken reasonable steps by providing clear warnings, consistent with the reasoning in Tomilson v Congleton, whereby the house of lords held that occupiers are not obliged to protect individuals from obvious dangers, the disclaimer on the signs don't add anything as the council is not negligent in relation to the harm suffered.

Overall, Tom voluntarily assumed an obvious and expressly prohibited risk, and the council is not liable in either vicarious or occupiers liability.

claire43 — 2026-01-20 11:50:26 UTC

They were no invited to cliff jump, only to fix the wall. s2(2) - no reasonable duty to ensure their safety in relation to cliff jumping as they became trespassers. (the Calgarth)

s1(3) OLA 84

Aware danger? Happened before and they put up a notice

Know trespassers will be in the vicinity - same as above.

Reasonable to offer protection? could have made the wall higher. Question is financial requirements - very costly to raise the wall/fencing along the length of the seawall.

Obvious risk (Ratcliffe- Staples v West Dorset) against which they do not have to offer protection - Tomlinson v Congleton, Ratcliffe v McConnell

Warning sign? No relevance and wouldn't not be sufficient to ensure their safety. Volenti - they have assumed the risk by jumping for which the defendant should not be held responsible.