This decision was reinforced by Lewisv Six Con-
tinents plc(2005), where the Court of Appeal dismissed
Mr Lewis’s claim for damages for personal injury caused
when he fell out of a second floor window at the de-
fendant’s hotel. He had no explanation as to how this
happened. The Court of Appeal ruled that, since Mr
Lewis did not suffer from any disability, the test was
whether the windows were unsafe for anyone. The win-
dows were quite safe for ordinary use. There was no
need, e.g. to restrict access to hotel windows.
Visitors – generally
The above duty is owed to all lawful visitors. These are
individuals who enter the premises with the expressper-
mission of the occupier, as where A (an occupier) invites
B (a plumber) to enter his home to repair a leaking pipe.
However, permission to enter premises is also implied
by the law. So, for example, persons who enter premises
to read, for example, gas and/or electricity meters are
there by the implied permission of the occupier, as would
also be a policeman with a search warrant, though in the
last case it is unlikely that the occupier would expressly
invite him on to the premises! The term ‘visitor’ does
not apply to trespassers.
Children
The 1957 Act provides that persons who occupy pre-
mises must take into account the fact that children may
be less careful than adults and therefore the duty of care
owed to children is higher.
An example of this is that things which constitute a
trap or are especially alluring to children must be given
special attention by an occupier, because he may be
liable for any damage which such things cause, even if
the child involved is a trespasser.
There was a notice in the park but the court decided
that this was not adequate as a means of communicating
the danger to young children. Also, the berries were within
easy reach and were attractive to children. The Corpora-
tion was liable.Visitors who are experts
The 1957 Act provides that persons who enter premises
as part of their job, e.g. plumbers and electricians, ought
to have a better appreciation of the risks which may arise
while they are doing their work.Part 4Business resources
430
defendant knew, these were often ignored. The House of
Lords turned down the claim because, in the view of
their Lordships, the defendant council was not in breach
of its duty. The claimant must have realised the dangers
involved in diving into shallow water. He, therefore, was
responsible for his own actions and the defendant was
not under a duty to protect against foolishness. The result
would appear to have been the same even if no notices
had been placed by the council. As Lord Hoffmann said,
‘A duty to protect against obvious risks or self-inflicted
harm exists only in cases where there is no informed
choice... such as the inability of children to recognise
danger.’Glasgow Corporationv Taylor (1922)A boy aged seven years died after he had eaten some
poisonous berries which he picked from a tree in a park
owned by the Corporation.Rolesv Nathan (1963)N employed two chimney sweeps to clean out the flues
of a heating system fuelled by coke. Although N warned
the sweeps against it, they blocked off a ventilation hole
while the coke fire was still alight. They were later killed
by the escape of carbon monoxide fumes. This action,
which was brought by the dependants of the sweeps,
failed. The court decided that an occupier is entitled to
assume that a chimney sweep will guard against such
dangers.Warnings
The 1957 Act states that if the occupier gives a warning
of the danger, it will free him from liability, but only if
the warning makes the visitor safe.
It would not be enough, for example, for a cinema to
give warning of a dangerous roof over what was the only
approach to the ticket office. However, if customers in
a shop are told not to go to the far end of it because
builders have opened up a dangerous hole, the shop-
keeper might well have no duty to a customer who
defied his instruction and fell down the hole.Exclusion of liability
The 1957 Act provides that an occupier may ‘restrict or
exclude his duty by agreement or otherwise’. However,
because of the Unfair Contract Terms Act 1977 (see
Chapter 9 ) there can be no exclusion of liability for