Tort Law: Liability and Duty of Care

This document discusses the concept of liability and duty of care in Tort Law. It explores the case of Jolley v Sutton London Borough Council and the application of the Occupiers' Liability Act 1957. The responsibilities of an occupier and the potential damages they may have to pay are also examined. The document provides insights into the legal principles and case laws relevant to this area of law.

Running head: TORT LAW
Tort Law
Name of the Student
Name of the University
Author Note

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Part A: Jolley v Sutton London Borough Council [2000] 1 WLR 1082
Question 1
Jolley, the claimant brought an action of breach of statutory duty under the
Occupiers’ Liability Act 1957 against Sutton London Borough Council, the defendant.
Question 2
The case was instituted at a Trial Court where the trial judge gave relief to the
claimant. The defendant appeal before the Court of Appeal and received relief. Finally,
Jolley appealed before the House of Lord.
Question 3
The House of Lords gave the permission for the final Appeal to be heard.
Question 4
i. The defendant made a concession by saying that even though it was foreseeable that
young children might get hurt while playing on that boat which was severely
damaged, however, it was unforeseeable that teenagers would get hurt by trying to
renovate the boat. The defendant also held that they had taken precaution for warning
the children as to the inherent danger of the vehicle.
ii. Lord Woolfe held that even though it was foreseeable that young children might get
hurt while playing on that boat which was severely damaged, however, it was
unforeseeable that teenagers would get hurt by trying to renovate the boat.
iii. The phrase ‘novus actus interveniens’ means breaking the chain by a new act or
intervention1. It refers to the concept that talks about the end to casual connections.
The liability of the defendant finishes or ends as soon as his action are intervened by
another person. In this situation, the defendant must prove that the causation of
1 Hodgson, Douglas. The law of intervening causation. Routledge, 2016.

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damage of the claimant is not due to his actions, but for someone else’s action or
intervention. The significance of ‘novus actus interveniens’ is that it can be used as a
defence by a defendant who has been accused of committing a tort2.
Question 5
i. The House of Lords supported the judgment of the Trail Court on the point of
argument that the nature of the accident was reasonably foreseeable as a vehicle of
that sort is a means of allurement for young kids and they are most likely to get into
trouble messing around with dangerous or risky things, not knowing the severity of
the thing.
ii. Lord Hoffman cited the case Bolton v Stone in his judgment for stressing on the point
of ‘reasonably foreseeable’3. In this case, the defendant which was a Cricket club was
held guilty of breaching it duty of care as it did not take enough precautionary
measure to protect people from getting hit by cricket balls. It was held that such
negligence could have been avoided by a large expense spent by the Cricket Club
where it could have installed protective nets and other obstructive things to stop the
balls from hitting people. However, it was also held that the risk in this matter was not
such that any person of ordinary prudence would adopt it to.
Question 6
The fact that the claimant was a visitor and not a trespasser is significant to establish
his liability and the liability of the defendant towards the accident. It is not unknown that
the boat was lying unused on a grassed area which was a frequently visited place by the
neighbouring children. It had become derelict as well as rotten by lying unused over the
2 Jolley v Sutton London Borough Council [2000] 1 WLR 1082
3 Bolton v. Stone [1951] AC 850

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period of time and hence was dangerous for the kids who clearly had no idea about the
inherent risk.
Question 7
As per the Occupiers’ Liability Act 1957, it is the liability of the occupier to take good
care of his premise and its belongings so that they do not form a threat or risk for visitors and
even trespassers. The Occupier must make sure that his premise or commodities in it do not
possess a risk for any outsider who has no knowledge about the dangerous thing. In case
there is a risky or dangerous thing in the occupier’s premise, then he must ensure every
possible security and preventive measure along with precautionary warnings in rendered to
stop an outsider from entering the premise or making use of the risky thing.4
Question 8
Section 2(4)(a) of the Occupiers Liability Act 1957 states that the liability of the
occupier is not absolved even if he had given enough precautionary warnings pertaining to
the inherent danger regarding the premise or any risky object present in the premises. A
damage caused to a visitor due to the risky condition of the premise or an object present in
the premise would be the liability of the occupier for his warnings failed to ensure a
reasonably safe condition of the claimant. The warnings would not be a factor that would
absolve the liability of the occupier towards the injury of the claimant unless it can be proved
that the warnings were enough to stop the claimant from indulging into any risky act or
intervention.
Question 9
The amount of damages was reduced in the court of first instance as it held that even
though the danger was foreseeable biggest the boat was lying in a place where young kids
4 Gilliatt, Jacqui. Teaching and the Law. Routledge, 2013.

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comes to play and it was most likely that someone or the other would have got hurt playing in
it. However the court held that it was impossible for anyone to even think that the young
children would try to who mend the rotten boat, make use of it and in the meanwhile would
manage to get badly hurt. As there is a presence of an impossible aspect along with a
reasonably foreseeable matter, the court directed the defendants to pay a lesser amount of
compensation to the claimant.

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Bibliography
Books/ Journal articles
Gilliatt, Jacqui. Teaching and the Law. Routledge, 2013.
Hodgson, Douglas. The law of intervening causation. Routledge, 2016.
Case laws
Bolton v. Stone [1951] AC 850
Jolley v Sutton London Borough Council [2000] 1 WLR 1082
Legislations
Occupiers Liability Act 1957

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Part B
Issue 1
It is to be decided whether Portsea City Council owes any liability to Harry and
whether it is liable to pay him damages.
Rule
The Occupiers’ Liability Act 1957 helps to identify the occupier as a person who
occupies or controls a premise and may not be the owner of such premise, having the liability
to prevent any kind of harm that a person may incur from such premise due to some risk or
danger related to the property. Failure to carry out such liability would lead to the tort of
negligence and a breach of its duty of care, which was not unforeseeable. In the case of
Harris v Birkenhead Corporation, the court held that an occupier can be a person who may
not have a physical control of the house, however have a legal control on the property5.
Section 2 of the Act lays down a common duty of care for the occupier towards the lawful
visitors, like contractor, licensees, invitees, et cetera who have been authorised to enter into
the property of the occupier6. It does not exclude the trespassers as well, however a lesser
duty of care is imposed on the occupier, in case a trespasser trespasses on the occupier’s
property and experiences a physical harm or an economic loss.
Before the revision of the Act, the occupiers owed no such duty of care towards an
uninvited person or a trespasser, except for refraining from causing them any kind of
deliberate harm. However, after several amendments, the occupiers are now directed to
undertake enough precautionary as well as preventive measures to protect any person who
enters the premise without authorization.
5 Harris v Birkenhead Corporation [1976] 1 WLR 279
6 Occupiers’ Liability Act 1957, S 2

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Section 2(4) of the Act direct occupiers to ensure to put up warning signs at premises
or a portion of it, where a person, invited or not, could not into any danger of physical harm
or injury7. In Rae v Mars (UK) Ltd, the court said that in case of extreme danger, a warning
sign would not be considered enough to prevent the occurrence of injury, but an additional
measure like putting up additional notice or obstruction would be necessary8. In case, the risk
or danger related to the premise is obvious and can be foreseeable by any man of ordinary
prudence, a warning sign may not be necessary, as held in Staples v West Dorset District
Council9. In case the occupier fails to provide warnings, it would be clear that he failed to
carry out his duty of care towards the claimant, hence giving the claimant the chance to ask
for damages.
Application
In the given case, Harry and Liam were attending a party at the Portsea Leisure
Centre, owned and managed by Portsea City Council, when they decided to take a swim in
the outside swimming pool, which was drained and kept closed for renovation work in
winter. They climbed over the gates of the pool and Harry jumped, not noticing that the
swimming pool had no water in it. As a result of the jump, Harry went into paralysis.
In this regard, it could be mentioned that the Council could be considered as the
occupier and it had taken all the necessary precautions and preventive measures to let
trespassers and unauthorised people to know that the pool was closed by putting up a notice
mentioning that the pool was closed and was under renovation. However, it could be held by
the claimant that the premise lacked proper warning or danger signs which could have
otherwise refrained them from trespassing. Therefore, it can be said that council did not
undertake the utmost precautionary measure to prevent the accident from occurring, hence
7 Occupiers’ Liability Act 1957, S 2(4)
8 Rae v Mars (UK) Ltd [1990]
9 Staples v West Dorset District Council [1995] 93 LGR 536

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negligent to carry out their duty of care. In this situation, the council would be liable to pay
damages to the claimant.
The Council could however cite the defence of Contributory Negligence on Harry’s
part as he was drunk and was not vigilant about the displayed notice of renovation at the gate
of the swimming pool. Nevertheless, such defence would not excuse the act of negligence of
the Council.
Conclusion
Therefore, it can be held that Portsea City Council owes a liability to Harry and it
would be liable to pay him damages.
Issue 2
It is to be decided whether Portsea City Council owes any liability to Eleanor and
whether it is liable to pay her damages.
Rule
The Occupiers’ Liability Act 1957 directs an occupier to be vigilant towards uninvited
persons or unattended children who have no knowledge about the underlying risk or threat
that might be lurking around the premise of the occupier. If the occupier fails to provide
sufficient precautionary measures, it would be an act of negligence on the part of the
occupier, leading to breach of duty of care which is not unforeseeable. In such situation,
the occupier would be held liable to pay damages to the claimant.
Exceptions and greater liability are imposed on the occupier in case of Children, as
they are considered to be less careful and lower intelligence level than adults. It is the duty of
the occupier to keep them under supervision, when they are at the occupier’s premise. A

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warning notice or danger sign would not be sufficient to prevent a child from getting into
trouble. The occupier is under the liability to ensure safety of all the equipment and risky
things at his premises and must ensure their safety, if the place is often visited by children, as
held in Glasgow Corporation v Taylor10. In this case, a child died by eating poisonous berries
at a park. It was held by the court that it was the liability of the park authority to make sure
that no such poisonous plant was growing in the park.
Application
In this case, Eleanor was roaming around the children’s play area unattended by her
mother. She fell down while climbing the steps of the slide whose coverings were peeling
away for the contractor had made use of a wrong adhesive. It was intended that Eleanor fell
down due to the coarse steps of the slides whose covering were peeling away. This can be
clearly pointed out as a negligence on the part of the Council for not taking proper care of the
slide which were meant for children’s use. The council did not even put obstructive fences for
refraining the children to play on the slide, which could have been considered as a kind of
warning. Therefore, the council could be held liable for being negligent to exhibit its duty of
care to Eleanor.
However, the defendant could cite the fact that Eleanor was unattended by her mother
even though they had put up warnings regarding that and therefore can cite the defence of
Contributory Negligence on the part of Eleanor’s mother. Nevertheless, it cannot surpass
its own liability to ensure a safe environment for the children. The occupier would be held
liable for being negligent and thus would be made to pay damages to the claimant.
Conclusion
Therefore, Portsea City Council owes a liability to Eleanor and it would be liable to
pay her damages.
10 Glasgow Corporation v Taylor [1922] 1 AC 44

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Bibliography
Case laws
Glasgow Corporation v Taylor [1922] 1 AC 44
Harris v Birkenhead Corporation [1976] 1 WLR 279
Rae v Mars (UK) Ltd [1990]
Staples v West Dorset District Council [1995] 93 LGR 536
Legislation
Occupiers’ Liability Act 1957