Table of Contents
Introduction
In this scenario I am going to give advice to Kasim family of what legal actions they can take, so in this question first it raises issues of negligence and also considerations of occupiers’ liability, because of the three different incidents that has happened to Mrs Kasim, Mr Kasim, and also Ali, and some of those incidents cause injuries, so if I start with the negligence and what it stands for?, negligence is when its been failed for the duty of care in a reasonable way or did not avoid thing that can cause injuries and also lose of life. This question also raises consideration of occupier’s liability which is governed by statute, so the first one is the occupier’s liability act (1957) which is an act of parliament and it covers for the several classes of visitors and also it covers the responsibility of the occupiers for the duty of care to the visitors. In addition to that this question also raises consideration of the occupier’s liability act (1984) and this act is also an act of parliament and it covers the liability of the trespassers or the non-visitors.
Occupier & Duty of care
Next I am going to explain and define what occupier is? According to Miller, T (2018),” OLA 1957 – S1 (2) states that common law rules apply as to what is mean by an ‘occupier’ that is, who has control over the premises? Also occupiers can incur in two acts which are the occupier’s liability act (1957), and the occupier’s liability act (1984) and the examples are, if a landlord lets premises then the tenant will be the occupier, and another examples is if a landlord who lets part of a building retains a certain area (such as an entry hall) then the landlord will be the occupier in respect of those areas.”
Whereas the duty of care is The duty or the legitimate commitment of a man or association to maintain a strategic distance from acts or oversights which can be sensibly predicted to probably make hurt others, for example, duty of care is owed by the doctor to treat the patient correctly, also another example is, duty of care is owed by the police to protect the public, so the duty of care is mainly being responsible and do take care for what you have been assigned to do.
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Glasgow corporation v Taylor (1922) & British Railways Board v. Herrington (1972)
According to Law teacher (2017)” explaining the facts, issue, and held of (Glasgow V Taylor) case said that the (Fact) of the case was: the father of a seven-year-old boy sued the Glasgow Corporation for damages following the death of his son who died as a result of eating berries from a poisonous plant that was growing in the Botanic Gardens in Glasgow. The gardens were open to the public and managed by the defendant. The father argued that the defendants allowed children to pass through their grounds frequently yet did not take any action to warn or alleviate the danger caused by the poisonous plant to children. The plant was enclosed by a wooden fence which was open to the public and easily accessed by children. Also the (Issue) of the case was: the inquiry for the court was whether this raised any grounds of bid for there to be a preliminary against the respondents for their risk. It was vital for the court to consider for this situation whether the litigant was careless in the demise of the claimant. It was especially imperative to comprehend the means that the respondent had taken to keep the peril caused by the way that the noxious berries being referred to would be especially appealing to kids. Also the (Held) was: The court held that the Glasgow Corporation was obligated in this occasion. They had allowed kids to go ahead to the land and it is justifiable that the berries would have engaged visiting kids, subsequently speaking to a risk. The litigants knew about this threat caused by the harmful berries and did nothing to keep the harm. On this premise, the activity was required to continue to preliminary.”
In addition to that according to e-lawsources (N.D), published the case of (Herrington V British railways board) AC 877 House of Lords, and said that the case (fact) was A six-year-old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park. The defendant was aware of the gap in the fence which had been present for several months, but had failed to do anything about it. Under existing authority of Addie v Dumbreck, no duty of care was owed to trespassers. However, the House of Lords departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of common humanity to trespassers. Then the (issue) which was published by web stroke law (2014) stated that the issue was Could the trespasser recover as they were injured on the property which the defendant had control over. Also according to swarb web (2018), the case (Held) was: Whilst a land-owner owes no general duty of care to a trespasser, the creation by him of particular risks which may be unknown to sections of the public, including children, might create such a liability. The test may be subjective, as to whether a land-owner of this character might reasonably be expected to do or refrain from doing something on his land to avoid the risk. A duty might arise where the owner had, or ought to have had, actual knowledge of trespassers using the land, and of the risk they might face, and the risk was such as might cause a person with ordinary humane feelings to seek to avoid it. The duty does not extend beyond taking reasonable steps to enable a trespasser to avoid the danger.
Answers & Advice for the Kasim family
In this case Mrs Kasim is clearly a lawful visitor and she legally purchased a ticket to enter the cold comfort farm, also she has a permission to visit the premises, because Brian and Jennifer invited the farm to the public similar to Wheat V E Lacon & Co Ltd case, which according to Law Teacher (2013), which the court decided that “The plaintiff and her husband had been visitors to the public house and were therefore owed a duty of care by the defendants. “ Secondly Mrs Kasim had her designer jeans tears them on a large nail protruding from the gate as she walks into the farm, so in this case Brian and Jennifer would be the occupiers because they own the property and they control the farm that they invited to the public so they have the responsibility and the duty of care of that area, same as the case of Donoghue v Stevenson [1932], which according to Law teacher (2013), Lord Atkin decided and said that “manufacturers owe a duty to the consumers who they intend to use their product.” Which means that who ever that run the company or own the area has duty of care for their customers, so yes Mrs Kasim can claim, also Brian and Jennifer will be the defendants on this case, which a contributory negligence may apply this case and this case will be governed by the occupier’s liability act (1957) which includes damages of property under this act, therefore Mrs Kasim could get a remedy to replace her designer jeans.
Next Mr Kasim is also a lawful visitor because he bought a ticket, then the trouble began he badly cut his hand after shears slip on while he was volunteering Brian at the sheep-sharing activity, so in this case Brian and Jennifer are the occupiers and they have the duty of care, but for somehow they may not, same as the case of Tomlinson v Congleton Borough Council, which according to Law teacher (2013), the house of lords decided that “The council had no liability to the claimant, and the risk arose from the claimant’s own actions who voluntarily engaged in this risk because the respondent was a man of full capacity who voluntarily engaged in an activity which had an inherent risk in it.” But this does not mean Mr kasim has no remedy at all, instead Brian has common law duty of care, also in this case it needs to be added occupiers liability concerns dangers relating to the state of the premises, because Mr Kasim’s injury happened during an activity, same as (Donoghue v Stevenson), when Donoghue’s friend decomposed remains of a snail floated out causing her alleged shock and severe gastro-enteritis, Which then Mrs Donoghue issued proceedings against Stevenson, the manufacture, which snaked its way up to the House of Lords, and then Lord Atkin decided according to law teacher (2013), “Manufacturers owe a duty to the consumers who they intend to use their product.” Also Brian may be liable for Mr Kasim’s damage of his hand, but it would be reduced to 2/3 under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for Mr Kasim’s own injury, same as Tomlinson v Congleton Borough Council case which according to law teacher (2013), the court of appeal “Awarded the claimant damages, but these were reduced by two-thirds under the Law Reform (Contributory Negligence) Act 1945.
Then Ali who is five falls into a ditch and breaks his ankle, so in this case it could be used by both acts the occupiers liability act (1984) and also the occupiers liability act (1957), also Brian would the occupier because first he is the owner of the property and secondly he requested Clarke construction to roped off the site and put a sign of no admittance to public, therefore Brian also controls the property, same as the case of British Railways Board v Herrington, which British Railways board was the defendant, on the other hand, Ali Is clearly a trespasser because he went to area that has a sign of not to enter, same as the case of (Glasgow Corporation v Taylor 1 AC 44) which a father of seven year old son sued Glasgow corporation following the death of his son berries from a poisonous plant that was growing in the Botanic Gardens in Glasgow, and the court decided that Glasgow corporation is liable because they allowed the public for a garden that has a poisonous plant which they knew children would be visiting and they did nothing to prevent, so in this case of Brian may be liable for Ali’s broken ankle because the danger clear to an adult may not be clear to a child.
Also according to Miller, T (2018), child trespasser is set on much higher standard and occupiers must be prepared for children to be less careful. Also Clarke constructions may also have a duty of care same as Wheat v E Lacon & Co Ltd case, which the tenant and the landlord were both owed a duty of care for the guest who injured at the stairs of the pub, also the rope protection and the warning sign that Clarke constructions used was not enough same as the case of Tomlinson v Congleton Borough Council, which the council used a warning signs prohibiting swimming, as well as park rangers who sought to prevent swimming in the lake, which did not work and someone has ignored the signs and dived which injured him and broke his neck, also in this case Brian did not tell Clarke constructions that they may be children visiting the farm so Brian did not fulfil the duty of care needed, so Ali can make a claim in this case because Ali who is a five year old child may be allured by something near the yellow excavator, same as the case of Taylor v Glasgow Corporation, which seven year old boy ate the berries that were poisonous and the boy died, and after his father sued Glasgow corporation the court held that the Glasgow Corporation was liable for this instance.
In conclusion, do the Kasim’s family have a cases to court? yes they have three cases which they can take to court to claim damages, also the Kasim’s family should keep in mind that Mr Kasim’s remedy could to be reduced by two third under the law reform contributory negligence act (1945), but the two other cases of Mrs Kasim and Ali they could get a full remedy for their damages.
Reference
- Law Teacher. November 2013. Glasgow Corporation v Taylor – 1922.
Available from: https://www.lawteacher.net/cases/glasgow-corporation-v-taylor.php?vref=1
[Accessed 1 December 2018]. - E-law resources. (N.D). British Railways Board v Herrington [1972] AC 877 House of Lords.
Available: http://e-lawresources.co.uk/British-Railways-Board-v-Herrington.php.
Last accessed 4th December 2018. - Law Teacher. November 2013. Tomlinson v Congleton Borough Council.
Available from: https://www.lawteacher.net/cases/tomlinson-v-congleton-borough-council.php?vref=1
[Accessed 4 December 2018]. - Law Teacher. November 2013. Glasgow Corporation v Taylor – 1922.
Available from: https://www.lawteacher.net/cases/glasgow-corporation-v-taylor.php?vref=1 [Accessed 4 December 2018]. - Law Teacher. November 2013. Glasgow Corporation v Taylor – 1922.
Available from: https://www.lawteacher.net/cases/glasgow-corporation-v-taylor.php?vref=1 [Accessed 4 December 2018]. - Law Teacher. November 2013. Donoghue v Stevenson [1932] Doctrine of negligence.
Available from: https://www.lawteacher.net/cases/donoghue-v-stevenson.php?vref=1 [Accessed 4 December 2018]. - Law Teacher. November 2013. Wheat v E Lacon & Co Ltd.
Available from: https://www.lawteacher.net/cases/wheat-v-e-lacon.php?vref=1
[Accessed 4 December 2018].
