Oct 02, 2017 term paper 2

Critical Analysis Of The Legal And Social Background

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Question 1:

Read the full judgments in the following cases:

Tomlinson v Congleton Borough Council [2003J UKHL 47

Keown v Coventry Health care NHS Trust [2006J All ER (D) 27

Using these judgments, present a critical analysis of tbe legaf and social background which has led to the current understanding of what ~will constitute a breach of the Occupier`s Liability Act 1984.

Answer 1:

Critical analysis of Tomlinson v Congleton Borough Council [2003J UKHL-47:

In the case stated above, Mr. Tomlinson had sued the Congleton Borough Council along with the Cheshire County Council due to the fact that they were the occupiers of the part and were therefore, held under the breach of the responsibilities and duties in accordance with the Occupiers Liability Acts of 1957 and 1984.

It was quite difficult to suggest as to who was the occupier of the park from amongst the 2. Whereas Borough council is the one that owns the park, there is no denying in the fact that the park is also maintained by the Countryside Management Service of the County Council. The Borough council is the one that provides the funds to the Countryside Management Service so that they could look after the park and maintain the same. It is the country that employs the rangers that look after it.

But both or one of the councils agreed that they were the occupiers.

Till the time, it is necessary to distinguish between the county council and the borough council, it would be fair to say that they both of them must be regarded as the council.

(Publications.parliament.uk, 2015)

(Bailii.org, 2015)

In the stated case, the House of Lords had held that the council was not liable.

As per the section 1(1) a of the Occupiers Liability Act, 1984, there was no risk that had risen from the state of the premises, rather the risk that arose was from the own action of the claimant. He was the one who was in the full capacity and who had voluntarily and without any pressure or inducement had engaged in the activity of an inherent risk.

But even if there existed a risk from the state of the premises, the risk was not the one that was gains the council that will reasonably be expected to offer some protection to the claimant under the section 1(3) c of the Act.

When the House of Lords had reached this decision, they had looked at the position if he had not been a trespasser and had also applied the common duty of care under the Occupiers Liability Act, 1957. The lord believed that there could be nothing that could have been done to warn or take any sort of steps so as to prevent the claimant from diving since the dangers were the ones that were obvious. This was based upon the principle of free will. Further, it will hold to deny the social benefit to the majority of the users from using the park and the lakes in the safe and in the responsible manner. In such a situation, this will mean to open up the country to litigation. The lord further believed that such cases were prominent nationwide even when there were safety measures that were being installed. About 25 t 30 of such of the incidents take place each and every year despite of the safety measures being in place.

(E-lawresources.co.uk, 2015)

It was being said that the Appellant Committee of the House of Lords had used this judgment as the compensation for the brand Britain’s growing US style claim as an evil that interfered with the civil liberties and the freedom of will.

(Edwardes, 2003)

Critical analysis of Keown v Coventry Health care NHS Trust [2006J All E-27:

As per section 1(1)a of the Occupiers Liability Act, 1984, trespasser, whether there is a danger to the state of the premises, whether there is a danger to the activity on the premises by the claimant and whether the occupier is liable for the breach duty to the trespasser.

In the given case, the claimant was of the age of 12 years had fallen when he was climbing up the fire escape. It was held that the defendant was not liable under section 1(1)a of the Act due to the injuries that he had received. The fire escape was not in itself dangerous. The danger was due to the activity of the claimant on the premises and was not due to the state of the premises.

(Lexisweb.co.uk, 2015)

The claimant had dived into the lake and was badly injured. The council had argued that it was guilty nor it was liable for any claim since the claimant was the trespasser.

It was held that the risk of injury arose not from the state of the premises of the defendant but from the things that were being done or omitted and the main reason for the injury arose from the misjudgement of the claimant since he undertook the decision of diving into the water that was too shallow. The Lord held this was the sole responsibility of the claimant and the defendant could not be held in respect of the same. The dangers that existed were sign posted and therefore, the Act was not applicable.

The Act of 1984 that has the difference between the person who had gained an entry into the property lawfully but became the trespasser when he gained the entry illegally and the person who was a trespasser. The Act specifies that there must be no difference the 2 and so there must be no difference between the judgements as well.

The lord had said that there was no need for any kind of voluntary assumption with regard to the risk so as to answer the following claim:

It was quite are for an occupier of the land to be under the duty so as to prevent the people from taking the risks that were inherent under the activities that they undertook freely since it was due to their free will. In case, the people want to climb up the mountains and go for hand gliding or swim or dive in ponds or the lakes, then it is their decision. They may be sole responsible for their decisions. The person may even think that they are in grave danger or inconvenience for themselves.

The person owning the property could also take a paternalistic view and prefer the people not to undertake the activities of risk on his land, he could impose restrictions but the law does not require him to do so. The lord had said that the most important question was the freedom at stake. He stated that it was very unjust to that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that the people take no notice of the warnings must not create the duty of the other steps in order to protect them. It was very difficult to express the disagreement with the proposition of Sedley LJ wherein he stated that the risk was very obvious that the occupier had safely assumed that nobody will take the final responsibility. The duty to protect the assumed risks or the self-inflicted harm could exist in the cases where there was no genuine and informed choice as were in the case of the employees that work requires them to take the risk or lack some capacity, such as the inability of the children to recognise the danger as was stated in the case law:

(Herrington v British Railways Board [1972] AC 877) or the despair of the prisoners that led them to inflict the injury on themselves: Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360.

(Swarb.co.uk, 2015)

Question 2:

With reference to decided casesexamine and evaluate` ttfe extent to which a duty of `common humanity` should be owed to a trespasser and th~ circumstances in which this duty can be legitimately discharged under s.1(5) & (6);Occupiers` Liability Act 1984.

Answer 2:

Sections 1(5) and 1) (6) of the Act:

Section 1(5) of the Act, any duty that is owed by the virtue of the section could be discharged by taking the steps that are reasonable in the circumstances that give the warning of the danger concerned or to discourage the person from incurring the risk.

Section 1(6) of the Act, any duty by the person in respect of the risks that are willingly accepted as being his or by that person.

(Legislation.gov.uk, 2015)

A trespasser is a person who come onto the property of another person without any permission and stays on the property even when the occupier asks him to leave. The occupiers in such cases owe the duty of care to the trespasser but they are also assumed to have the duties that are high as are with the other categories of the visitor’s. The usual guidelines are of the common humanity. There is always a question that varies with each case. It is very clear that the curator who is entrusted with the responsibility of protecting the blunderbuss is connected to the trip is exceeding the duty of the common humanity but there are examples that are sometimes difficult to judge. The common humanity is very variable but the courts believe in the fact that where children are involved, they must be protected. In the cases where the children are involved, the courts do not find it in their favour just because of their sentimentality. The mere fact that the warnings are for the adults lure the children in.


Bailii.org, `Tomlinson V. Congleton Borough Council & Ors [2003] UKHL 47 (31 July 2003)` (2015) accessed 20 January 2015

Edwardes C, `End This Compensation Nightmare, Say Judges - Telegraph` (Telegraph.co.uk, 2003) accessed 20 January 2015

E-lawresources.co.uk, `Tomlinson V Congleton Borough Council` (2015) accessed 20 January 2015

Legislation.gov.uk, `Occupiers Liability Act 1984` (2015) accessed 20 January 2015

Lexisweb.co.uk, `Keown V Coventry Healthcare NHS Trust | Lexisweb` (2015) accessed 20 January 2015

Publications.parliament.uk, `House Of Lords - Tomlinson (FC) (Original Respondent And Cross-Appellant) V. Congleton Borough Council And Others (Original Appellants And Cross-Respondents)` (2015) accessed 20 January 2015

Swarb.co.uk, `Tomlinson -V- Congleton Borough Council And Others; HL 31-Jul-2003 | Swarb.Co.Uk` (2015) accessed 20 January 2015

www.simpsons.com.au, `The Duty Of Care To Public` (2015) accessed 20 January 2015.

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