Two A grade model essays: A 10 mark essay assessing a problem question about Occupier's Liability and a 30 mark essay assessing a problem question on Nuisance and Rylands v Fletcher
8. Referring to the Occupier’s Liability Act 1957, and to contributory negligence, advise Rob as to his
rights and remedies against Sue in relation to his injuries and losses [10 marks]
It is submitted that Rob will likely be unable to gain any remedies in relation to his injuries and losses due to s2(3) of
the Occupier’s Liability Act 1957 (OLA) and the fact that he was in a trade and injured in the scope of his work.
Additionally, it is likely that even if Occupier’s Liability succeeds and Sue is found liable, she will be able to claim the
defence of “Res Contributorii”.
Firstly, we shall assess Sue’s liability under the OLA s2(2) which is that the defendant must “make the premise
reasonably safe” and that the claimant must be “doing what they were meant to be doing”. We can see an example
of “reasonably safe” in the case of Kiapasha where it was held that the premise does not have to be made absolutely
safe but only reasonably safe. Whilst it may be held that Sue did not make the premise reasonably safe, the case of
Rochester Cathedrals states that the property only has to be made reasonably safe for what it is. For example, in
Rochester Cathedrals, it was held that loose floorboards are reasonably safe for a medieval cathedral. Regarding our
defendant Sue, it is evident that loose railings may be held to be reasonably safe for an old house, negating Sue’s
liability. Nonetheless, the judge may decide that this is not reasonably safe so we must assess the next part of the
test which is that the claimant was doing what they were meant to be doing. For this, we look at the case of
Wetherspoons v Calgarth where the Barrister Tom Denning stated, “when I invite you to climb the stairs, I do not
invite you to slide down them”. This can be applied to the case of Rob where he was invited to fix the railing not lean
on it, so therefore was not doing what he was meant to be doing. Therefore, it is autre clare that Sue is not liable for
Rob’s injuries.
However, even if a judge does allow this part of the test to succeed, it is evident that s2(3) of the OLA will negate any
liability Sue has. S2(3) states that those carrying out a trade or calling are owed less of a duty and ought to be aware
of risks in the scope of their work. This can be seen in the case of Roles v Nathan where the chimney sweeps ought
to have known about the risk of noxious fumes. Regarding our claimant Rob, a repair man ought to know about the
dangers of leaning on a loose railing so Sue owes no duty to him. Also, the defence of warning signs as seen in s2(4)
of the OLA may apply here as seen in the case of Rae v Marrs as Sue verbally warned him of the risks.
Even if all the above succeeds and Sue is somehow found liable for Rob’s injuries, she may be able to apply the
defence of contributory negligence found in the 1945 Law Reform Act and is where the claimant contributed to their
harm in some meaningful way (Froome v Butcher). This is a partial defence where the judge will reduce damages
depending to how much the claimant is at fault but damages may be reduced by 100% (Jayes). It is evident that by
leaning on the banister, Rob contributed to his own negligence in a very meaningful way and it is likely that damages
will be reduced by 100%.
To conclude, it is evident that Sue is not liable for Rob’s injuries so will not have to pay any damages.
10. Consider Tam’s rights and remedies against Ursula in relation to the operation of her factory and in
relation to the damages to Tam’s garden
It is submitted that Ursula may be liable for the damages to Tam’s garden under both nuisance regarding the
chemical smells and the rule in Rylands v Fletcher in relation to the chemicals leaking and damaging Tam’s soil. It is
possible that the factor of benefit may negate Ursula’s liability for the nuisance but this is unlikely as the factor of
malice will likely overrule this. There will be no application of any defences though we will discuss moving to a
nuisance as found in the case of Coventry v Lawrence but it must be noted that this is not a defence.
Nuisance
We shall begin by assessing Ursula’s liability for the loss of amenity of Tam’s property regarding the chemical smells
which prevented him from opening his windows. Firstly, we need to assess the land requirement and the
interference. The land requirement is that the claimant must have a legal interest in the property by either being a
free holder (owning the property), a lease holder (renting it) or a contractor (licensing it). This can be seen in the
case of Hunter v Canary Warf where the claimant did not fit any of these land requirements so was unable to claim.
Regarding our claimant Tam, it is evident that he owns the property as he bought the cottage so satisfies the land
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