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The extent of an occupier’s liability towards a non-visitor, and the degree of knowledge which the defendant is required to have over the presence of a non-visitor in the vicinity of the danger as set out in s1(3)(b) Occupiers Liability Act 1984.
The defendant’s owned a defunct factory, around which they had erected a seven foot-fence topped with barbed wire. There was however a small section of the fence at which the barbed wire was missing. The claimant, a nine-year old boy, managed to locate this spot, and using an adjoining wall as a foothold, managed to scale the fence and to enter the defendant’s premises. After he had gained access to the factory premises, he climbed a ladder onto the factory roof itself. He then fell through a skylight on the roof of the factory, and sustained serious injuries as a result. The claimant asserted that he was owed a duty of care by the defendants under s1(3)(b) of the Occupiers Liability Act 1984, which imposes a duty of care when the defendant;
“knows, or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into vicinity of the danger in any case”.
According to the claimant, this imposed liability where the defendant knew, or ought to know, that the claimant was likely to be in the vicinity of the danger. This was rejected at first instance by the High Court, who held that s1(3)(b) imposed a duty only where the defendant knew of the other’s presence, or was actually aware of facts which would have provided grounds for a reasonable belief that the other was in the vicinity of the danger. The claimant appealed against this decision.
Where the defendant does not actually know that there is another non-visitor in the vicinity of a danger of which they are aware, it is necessary for them to have actual knowledge of certain facts or circumstances which would create grounds on which a belief that there was another person in the vicinity of the danger? Failing this, can a defendant be liable where they ought to have known that there were circumstances which gave rise to this belief?
The appeal was dismissed by the Court of Appeal. It was held that s1(3)(b) of the Occupiers Liability Act 1984 required a defendant to have actual knowledge either of the claimant’s presence in the vicinity of the danger, or of facts which would create a reasonable belief that there was another likely to be present, in order for a duty of care to be owed by the defendant towards the claimant. The Court of Appeal considered the argument that the defendant should be considered to have constructive, or imputed knowledge of facts that would give rise to these circumstances. Certain arguments could be put forwards to support this argument, as the textual wording of s1(3)(b) states only that the defendant “has reasonable grounds” to believe that there was another present. As such, requiring actual knowledge of these grounds to be had might be argued to encourage defendants not to inquire too diligently into circumstances which might give rise to this belief, or to otherwise “shut” their eyes to such facts in order to ensure that they did not have a duty of care imposed on them in respect of these non-visitors. This was something put forwards by counsel for the claimant before the Court of Appeal,
This argument was ultimately rejected by the Court of Appeal, who agreed with the decision of Ognall J in the High Court, that Parliament did not intend s1(3)(b) Occupiers Liability Act 1984 to impose a duty of care on defendants in circumstances where they either knew or ought to know that there was another present. If Parliament had intended this, it was held that they would have included the words “where a defendant knows, or ought to know” of another’s presence. Seen in this way, Swain v Natui Ram Puri can be seen as an exercise in the application of both the literal rule of statutory interpretation, and of the purposive method of statutory interpretation.
Given the fact that the factory was defunct, and that there was no evidence that there had been any children in the area that had been seen or witnessed by the defendants, no duty of care could exist in the circumstances even if it was accepted that this evidence of children being near the factory ought to have been known about by the defendants. It was held, that the defendants, by having erected a high fence (and for this fence to be topped with barbed wire) had inspected this fence and found no signs of trespass, meaning that they did not in fact either “shut their eyes” to the circumstances, and that they did not have actual knowledge of facts which would give rise to a reasonable belief in the presence of another.
In any event, according to the judgment given by MacCowan LJ, the duty, if it did exist, was discharged satisfactorily by the defendants by the erection of a seven foot high fence around the premises, which might have been regarded as the taking of reasonable steps to protect against the danger of individuals falling through the roof of the factory, considering the fact that it must be thought to have been unlikely for a child to have managed to scale this fence, and considering the fact that it must be considered unlikely for anyone at all to have sought to have climbed onto the roof of the factory in any event.
In conclusion, the decision in Swain has determined that the requirement that the defendant have “reasonable grounds” to believe that there was another in the vicinity of a danger known about by them requires that the defendant actually did have these grounds. This means that the defendant will not be liable where these grounds might have existed, but they were not aware of the factors which would have given rise to this reasonable belief.
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