Chapter 15Business propertydeath or personal injury on business premises. In regard
to other loss, e.g. damage to the goods of a visitor, liab-
ility can be excluded only if it is reasonable to do so.
Faulty work of outside contractors
The 1957 Act allows an occupier to escape liability if the
damage results from the faulty work of an outside contrac-
tor (called also an independent contractor) whose expert-
ise is necessary to get the job done, provided the occupier
behaved reasonably in the selection of the contractor.
431
Cookv Broderip (1968)The owner of a flat, Major Broderip, employed an appar-
ently competent electrical contractor to fix a new socket.
Mrs Cook, who was a cleaner, received an electric shock
from the socket while she was working in the flat. This
was because the contractor had failed to test it properly.
The court decided that Major Broderip was not liable to
Mrs Cook but the contractor was.
Comment. In a more recent case the Court of Appeal
has ruled that it can be part of the occupier’s duty to
employ a competent contractor to see that the contrac-
tor has unexpired insurance so that if he or she is neglig-
ent and sued successfully by an injured claimant there
is the backing of insurance to pay the damages. Failure
to make such a check may result in the occupier being
liable for the damage on the ground that the contractor
was not competent. (See GwilliamvWest Hertfordshire
Hospital NHS Trust(2003) where a fair was set up on the
defendant’s property and the claimant was injured by
the fairground equipment arising from the fair contrac-
tor’s negligence. His insurance had expired and because
the trust did not check this it was held liable for the
claimant’s injuries.)Trespassers
The position of trespassers is covered by the Occupiers’
Liability Act 1984. The Act deals with the duty of an
occupier to persons other than his visitors and this
includes trespassers and persons entering land without
the consent of the owner, but in the exercise of a private
right of way or public access. In these cases the occupier
owes a duty, if he is aware of the danger which exists, or
has reasonable grounds to believe that it exists.
He must also know, or have reasonable grounds to
believe, that the non-visitor concerned is in the vicinity
of the danger – whether he has lawful authority to be in
that vicinity or not.
Furthermore, the risk must be one which in all the
circumstances of the case it is reasonable to expect the
occupier to offer the non-visitor protection against. It was
held, for example, in Proffit vBritish Railways Board
(1984) that British Rail (as it then was) had no general
duty to erect or maintain fences sufficient to keep tres-
passers out. The case applies to Network Rail, which is
the successor to British Rail.
The duty is to take such care as is reasonable in all the
circumstances of the case to see that the non-visitor does
not suffer injury because of the danger concerned. The
duty may be discharged by giving a warning of the dan-
ger or taking steps to discourage persons from incurring
risk. Thus, the defence of assumption of risk is preserved.
A case in point is Ratcliff vMcConnell(1999) where
the claimant sued for tetraplegic injuries sustained by
diving into the shallow end of a college swimming pool
when the pool was closed for the winter. He had climbed
over a locked gate in the early hours of the morning.
There were warning notices and notices prohibiting use.
The claimant, who was an adult, did not recover any
damages against the college (represented by the defend-
ant who was a governor). He willingly accepted the risk,
said the Court of Appeal.Intellectual property and its
protectionGenerallyIntellectual property is a term used to refer to a product
or a process which is marketable and profitable because
it is unique.
This uniqueness is protected by patent law, which
gives protection to technological inventions. The law
relating to registered designsprotects articles which are
mass produced but distinguished from others by a reg-
istered design which appears upon them. The law of
copyrightprotects, e.g. rights in literary, artistic, and
musical works. The law of trade marksand service marks
protects the use of a particular mark if it is used in trade.
The law also protects those in business from com-
petitors who maliciously disparage their products or who
pass off their own products as those of another business.
There is also some protection in regard to the commercial
use, e.g. by employees without permission, of confidential
information.