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Contents
Concepts and Issues Surrounding the case. 3
Identification of the Statute and the Occupier 3
The Test of Reasonable Steps Taken and Liability Owed. 4
Vicarious Liability: Employee versus Independent Contractor 5
Acting within the Scope of Employment 6
Rights of Keel under Occupiers’ Liability. 6
Concepts and Issues Surrounding the Case
Occupiers’ Liability
Notwithstanding bodily occupation, occupiers’ liability is an outcome of a duty, flowing from owners or to whom the owner has delegated the duty to those who visit their property. In this liability, it is necessary that a duty of care existed and was breached, leading to damage or harm. In this regards, an omission is a typical reason for liability to arise as the occupier has the duty to take rational steps to avoid harm or damage to the visitors by taking safety measures (North, 2014). The Occupiers’ liability that was presented and developed in common law has now been codified in legislation represented by the Occupiers Liability Act 1957, relevant for lawful visitors and Occupiers Liability Act 1984 relevant for those other than lawful visitors (Bermingham and Brennan, 2014). The Issues presented in case relate to the identification of the relevant statute and the occupier for the purpose of allocating liability, as both Waltersmith and contractors currently occupy the property. Furthermore, it has to be evaluated if steps taken to ensure the safety of visitors were reasonable and whether the occupier(s) owed a duty to Peat and West that was breached, and if there are any defences available. Finally, it has to be found in Smith and Keel have any rights and obligations in the given scenario relating to occupiers’ liability.
Vicarious Liability
Vicarious liability refers to an obligation that has developed in the common law from the notion of the agency so that the act of employees or other subordinates hold the principle or superior accountable. A typical example is where an employer is held responsible for the actions of his employee (Scott, 2013). In the given case, the issues that are presented regarding vicarious liability questions whether Smith worked in the capacity of an employee or a contractor who was independent for determination of liability; also, if Smith was an employee, was he working in scope of employment when the negligence happened? Lastly, the defences available to Smith’s employer (if vicarious liability exists) and remedies available to Keel have to be examined.
Discussion
Identification of the Statute and the Occupier
From the facts of the given case, it can be revealed that the Liability Act 1957 will be utilised for purpose of evaluation of the issues surrounding the case; the reason for the utilisation of this Act will be developed in the discussion that follows. The two Acts of Parliament regarding occupiers’ liability do not define an occupier; rather, the Occupiers’ Liability Act 1957 s1 (2) refers to the common law for the identification of an occupier. In this regards, the case law of Wheat v E Lacon & Co Ltd concluded that both the owner and manager of a land were deemed occupiers of that land, rendering possible the existence of more than one occupier, who may owe varying levels of liability[1]. This was because, as per Lord Denning, control of the person over the land made him the occupier as then it was possible to comprehend the damage that an omission by the occupier could cause to visitors (Kidner, 2012). It can be deduced from the above that in the given case, the occupiers for the purpose of this law were both Lord Waltersmith and the contractors. This is because although, Lord Waltersmith was the owner and had the power to make decisions regarding the land, the contractors could be held accountable under s2 (4b) of the Occupiers’ Liability Act 1957, which explains that if an independent contractor can be relied upon by the virtue of his competence by the occupier and, that, despite reasonable steps taken by the occupier, the independent contractor due to faulty construction, repair or maintenance causes damage to a visitor, then the independent contractor is also held accountable (The National Archives, n.d.). In the case presented here is no express statement as to the competence of the contractors but it can be assumed given the work of construction that specialised and competent contractors would have been hired. Therefore, once this is proved, Lord Waltersmith will be able to transfer, at-least partially, the liability owed under Occupiers’ Act.
The Test of Reasonable Steps Taken and Liability Owed
Although, Peat and West were not expressly invited, they can be implied to be permitted under the Allurement principle, where, as per Bennett (2011), the property tends to attract people for visit. In this regards, the case law of Taylor v Glasgow Corporation depicted berries in a park as an attraction or allurement for a seven year old visitor, who ate the poisonous berries and died[2]. Similarly, the under-construction lake acted as an allurement for Peat and West, who can, therefore, be implied to be visitors under the 1957 Act. Furthermore, another area where the mentioned case sheds light into is that of the extra care needed with children (Turner and Boylan-Kemp, 2012). Additionally, the s2 (3) of the Occupiers’ Liability Act 1957 includes that the occupier of a property must be able to comprehend that the care taken by children is far less than that taken by adults and, that, where adults may be able to decipher the inherent threat in a regular dangerous situation, children will act entirely different and may actually be attracted to dangerous objects. Also, the case of Taylor reveals that when allurements are not made safe by the occupier, the occupier is considered to have breached the duty of care (Dimond, 2013). In the concerned case, West aged 10 and Peat aged 9 were children and, therefore, the aforementioned level of care should have been exercised, especially given the allurement.
In addition to this, it is stated in the s2 (4a) of the Occupiers’ Liability Act 1957 that the visitor must reasonably be warned about the peril by the occupier so that under all situations, the visitors would sensibly be expected to be safe (The National Archives, n.d.). In the scenario presented, contractors of Lord Waltersmith made use of signs on the fence’s outside that displayed the exclusion of liability of the contractors in case of damage or injury caused to visitors. In relation to this, it can be observed that the sign was merely an exclusion notice and not a sign to deter damage as even if the sign was noticed by the children, they would not have been made…
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