Davidson v Scottish Ministers (No.2) [2004]

English Constitutional Law

Davidson v Scottish Ministers (No.2) [2004]
‘The Prisoner’ by Vladimir Makovsky

The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under art.3 of the European Convention on Human Rights (ECHR) (Prohibition of torture) which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so citing he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance the Court of Session refused to issue orders against them on grounds that s.21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

However the court denied such an order while the Extra Division followed suit for the same reasons before the appellant was again denied recourse before the House of Lords until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate, and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under s.38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity, whereupon the House of Lords referred to Porter v Magill in which they had held that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

And so after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP who was at the time the Secretary of State for Scotland, and that Lord Hardie had merely been representative of those actions within his professional capacity, while clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991]

English Contract Law

Williams v Roffey Bros &  Nicholls (Contractors) Ltd [1991]
‘Carpenter Shop’ by Carl Larsson

The amendment of an existing contract underpins the argument between contracting parties when a main building contractor secures a residential refurbishment project and accepts the tender of a carpentry subcontractor’s tender despite the low value of his submission.

Having agreed to both first and second fix twenty-seven flats within a specified time for £20,000, the respondent carried out the work on the understanding that payments were made on an arbitrary basis, and so after six months he had first-fixed all twenty-seven flats but second-fixed only nine, while having been paid £16,200 for the work performed.

Aware that his tender was now unprofitable, the respondent renegotiated to keep his business afloat and avoid the financial penalty clause applied to the appellants should the project overrun, whereupon both parties agreed to continue working together on the condition that a further £10,300 would be paid in incremental payments of £575 for each flat completed, however when the respondent left the project only £1,500 had been paid and only seventeen of the twenty-seven flats were substantially completed.

Initially seeking around £33,000 in damages the respondent reduced his claim to around £11,000, citing that the appellants had breached the terms of their oral agreement; whereas the appellants argued that the agreement to pay the additional £10,300 was unenforceable due to non-completion, and that no consideration had been given by the  respondent during revision of the original contract. 

Argued in the Kingston-Upon Thames County Court the judge found that while the flats had not been completed there had been sufficient consideration as to allow calculable damages of around £11,800, and awarded accordingly, while presented to the Court of Appeal the issues around payment for incomplete performance of a contract and the argument for lack of consideration were given closer examination before the Court  noted how p.126, para.183 of Chitty on Contracts stated that:

“The requirement that consideration must move from the promisee is most generally satisfied where some detriment is suffered by him e.g. where he parts with money or goods, or renders services, in exchange for the promise. But the requirement may equally well be satisfied where the promisee confers a benefit on the promisor without in fact suffering any detriment.”

Thus the Court dismissed the appeal on grounds that the respondent’s agreement to continue working toward completion of the flats provided a degree of benefit to the appellants, because failure to do so rendered them subject to the penalty clause, while the Court finally reminded the parties that:

(i) if A has entered into a contract with B to do work for, or to supply goods or services to, B in return for payment by B; and (ii) at some stage before A has completely performed his obligations under the contract B has reason to doubt whether A will, or will be able to, complete his side of the bargain; and (iii) B thereupon promises A an additional payment in return for A’s promise to perform his contractual obligations on time; and (iv) as a result of giving his promise, B obtains in practice a benefit, or obviates a disbenefit; and (v) B’s promise is not given as a result of economic duress or fraud on the part of A; then (vi) the benefit to B is capable of being consideration for B’s promise, so that the promise will be legally binding.”

Holwell Securities Ltd v Hughes [1974]

Holwell Securities Ltd v Hughes [1974]
‘Post Office’ by David Gilmour Blythe

Conveyance of property and the requisite methods of notice when accepting an offer are clearly defined under s.196 of the Law of Property Act 1925, so when a buyer elected to take advantage of an option to purchase, they did so in a way that flirted with the prescribed method yet failed to secure the bargain despite arguments to the contrary.

Having decided to sell his home the respondent wrote to the appellants setting out an option to purchase which expired within a six-month period, while the specific terms of the offer outlined in clause 2 stated clearly that:

“The said option shall be exercisable by notice in writing to the intending vendor at any time within six months from the date hereof…”

Contrastingly s.196(4) of the Law of Property Act 1925 also explains that:

“Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

And so on this occasion the appellants solicitors drafted a written acceptance of the offer before hand delivering it to the respondent’s solicitors while noting within the correspondence that a copy of the written notice of acceptance and a deposit cheque had also been posted to the respondent’s home. 

After receiving the letter the solicitors telephoned the respondent to advise him they had received the notice, and that a copy of it was on its way to him, whereupon he explained that he had already made travel plans, and so having been instructed by his solicitors to leave despite the expected letter, he vacated his home for a number of days.

After being franked and handed to the post-office, the letter ultimately failed to arrive at the respondent’s home, thus the appellants sought legal action to secure the purchase on grounds that a contract for both sale and purchase had been executed irrespective of whether the posted letter had arrived, while it was also argued that the oral communication between the solicitors and the respondent further confirmed acceptance of the offer when factoring in the solicitors possession of the letter.

In the first instance the appellants relied upon Henthorn v Fraser, in which the Court of Appeal had held that:

“Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.”

However the court ruled against them, before the Court of Appeal overruled and distinguished Henthorn in light of an absence of expressed postal methods expressed within the purchase option, and so dismissed the appeal on grounds that failure of the respondent to physically take receipt and read the notice became fatal to any claim of right to buy, while clarifying that:

“If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone’s mind is not functioning as such.”

Esso Petroleum Co. Ltd v Mardon [1976]

English Contract Law

Esso Petroleum Co. Ltd v Mardon [1976]
‘Gas’ by Edward Hopper

Prior to the Misrepresentation Act 1967 many cases involving mistruths and false inducements relied upon rules of collateral warranty and negligent misrepresentation to establish liability, however on this occasion an international oil company was betrayed by their own haste when attempting to victimise a willing but inexperienced employee.

In 1961 the cross-appellants looked to construct a new filling station within the busy streets of Southport, and so having established the location and calculated the potential value of business it was agreed that once opened the station could very well expect to turnover around 200,000 gallons of petrol per year within its first three years of trading. 

With such positive projections the cross-appellants purchased the site and began work, however during the planning permission stage they were delivered an unexpected blow when the local authority expressed that the petrol pumps were not permitted to face the road, but were instead to be positioned at the rear of the building.

This unexpected design change heavily reduced their previous calculations, however undeterred they sought to recruit a leaseholder for the site, and so after a successful interview the appellant was conditionally offered the post while subject to rents based upon the now unrealistic sales volumes, however during his interview the appellant queried the figures presented while the cross-appellants argued there was no cause for concern and that the original projections remained reliable.

Despite his concerns, the appellant accepted the position before working tirelessly for two years, until faced with financial ruin after losing money from the severely reduced sales, considerable personal investment and a sizeable overdraft no longer repayable, he approached the cross-appellants with every intention to quit, whereupon they agreed to reduce the rent and offer bonus payments from the sale of petrol in order to offset his losses. 

As an act of continued faith the appellant agreed to honour a twelve month contract, however his circumstances continued to deteriorate, and despite the cross-appellants offering him a more profitable station, their support diminished until the arrangement became unsustainable, and yet in 1966 the cross-appellants issued a writ for non-payment of petrol supplied during their working relationship.

Naturally shocked and angered, the appellant counter-claimed for damages caused through the loss of earnings, damage to his health, lost opportunities through his efforts to make the site a success, breach of warranty through the misleading statements made in relation to sales turnover, negligent misrepresentation and the inducement to take employment where the outcome was never going to be the one presented during his interview.

In the first instance the Court of the Queen’s Bench held that the cross-appellants comments were tantamount to opinions and not warranties, but that the claim for negligent misrepresentation was enforceable until the date of the revised employment contract in 1964, while in the Court of Appeal the appellant relied upon Hedley Byrne & Co Ltd v Heller & Partners Ltd, in which the House of Lords had held that:

“[I]f someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference.”

And so having examined the finer points of collateral warranty and the limitations of contractual breaches, the Court unanimously upheld the appeal on grounds that the flow of damages were unmistakably linked to the claims made and that remoteness could not stand when factoring in the sources of revenue used by the appellant when trying so hard to keep the station afloat, while finally clarifying that:

“[I]f a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another be it advice, information or opinion with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable.”

Davis Contractors Ltd v Fareham Urban District Council [1956]

English Contract Law

Davis Contractors Ltd v Fareham Urban District Council [1956]
‘Construction Site’ by Jan Altink

The principle of ‘frustration’ and the nature of commercial contracts are both given equal consideration when a local authority fails to acknowledge or pay costs exceeding the original agreement despite pleas for reasonability by the claimants.

Shortly after World War II the appellants tendered for the construction of a large number of houses over a fixed period, and so due to the economic fragility of the country, their submission included a letter outlining allowances for rising material costs and labour shortages, while after further negotiations the respondents allowed them to perform their contractual obligations until the agreed eight-month period expired. 

Upon discovery that only a fraction of the total number of houses had been completed the appellants cited frustration through inclement weather, delays in material deliveries and a shortage of labour, whereupon the local authority expressed no disagreement with their statement and the work continued for another fourteen months, however upon completion the total cost of the work was £115,233 versus the agreed £94,424, which left the appellants facing a loss of around £20,000.

When asked to pay the additional sum on grounds of quantum meruit (payment for services rendered and therefore deserved) the respondents refused to pay and offered only the amount contracted for, before the appellants claimed recovery on grounds that:

1. The letter submitted with the tender was part of the contract.

2. The contract was entered into on the proviso that both materials and labour were available.

3. Because those two elements were absent the contract had ceased to exist thus any subsequent performance was subject to a quantum meruit. 

Under arbitration the doctrine of frustration was given considered significance in favour of the appellants on the strength of the letter, while in court the judge also agreed the letter formed part of the contract and so awarded accordingly. 

Under challenge the Court of Appeal disagreed and referred the matter back for greater clarification of frustration, and so with the arbitrator remaining resolute on the letter the Court held that the letter was a mere facet of negotiations therefore frustration had not occurred, after which it was put before the House of Lords in order that the appellants could advance their contention that where frustration failed quantum meruit ought to succeed.

To clarify, the nature of frustration relies more upon unforeseen circumstances affecting both parties to a contract as opposed to one at a loss through unexpected events, while in this instance the appellants were aware that labour and material shortages were likely, and neither party had agreed that the original contract had ceased to exist and that another had begun.

With this in mind the House dismissed the appeal on grounds that unless agreed to, the terms of the original contract had remained unaltered despite the increased duration of the project and escalating costs incurred by the appellants, all of which amounted to little more than a seemingly well-drafted plan gone awry, while the House clarified for the parties that:

“[F]rustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”

Chartbrook Ltd v Persimmon Homes Ltd [2009]

English Contract Law

Chartbrook Ltd v Persimmon Homes Ltd [2009]
‘The Purchase Contract’ by Quentin Metsys

Rectification of contract and the exclusionary rule of pre-contract negotiations when deciphering both parties intentions are uneasy bedfellows within English law, and yet  these two principles proved effective when the complex and confused drafting of a multimillion pound construction project created heated litigation.

When the land dealer respondents and property developer appellants undertook a mixed development scheme, schedule 6 of the contract bred uncertainty and conflict through opposing interpretations that at first glance favoured of the respondents to the tune of almost £3.6m, and so relying upon the argument of construction to claim their fees the respondents took the matter to court where in the first instance the judge found in their favour and awarded the amount before a failed appeal left the appellants pursuing a remedy in the House of Lords. 

Here the House discussed the nature of contracts and the intentions of those involved before referring to Prenn v Simmonds in which it had held that:

It is only the final document which records a consensus.”

Before noting that in order to achieve a clear outcome the parties must seek rectification of the contract as defined in Swainland Builders Ltd v Freehold Properties Ltd in which the Court of Appeal had also held that:

“The party seeking rectification must show that: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) there was an outward expression of accord; (3) the intention continued at the time of the execution of the instrument sought to be rectified; (4) by mistake, the instrument did not reflect that common intention”

However on this occasion the respondents were adamant that the calculation formulae was correct despite obvious contention by the appellants, and so the House upheld the appeal on grounds that an objective application of the formulae through the eyes of a reasonable man showed that while the respondents were content to pursue the terms of sch.6 under a clear misapprehension, sufficient reasoning and supporting evidence reflected the views of both the House and laymen besides, while also reminding the parties that:

“When the language used in an instrument gives rise to difficulties of construction, the process of interpretation does not require one to formulate some alternative form of words which approximates as closely as possible to that of the parties. It is to decide what a reasonable person would have understood the parties to have meant by using a language which they did.”

Central London Property Trust Ltd v High Trees House Ltd [1947]

English Contract Law

Central London Property Trust Ltd v High Trees House Ltd [1947]
‘Crescent of Houses’ by Egon Schiele

‘Equity regards as done that which ought to be done’ while in this instance the maxim is perfectly suited to the exploitative coloration of a business agreement, when in September 1937 a parent company and subsidiary entered into a written lease agreement concerning a newly built block of flats.

Shortly after the outbreak of World War II the buildings became partially occupied due to the risk of bombing, and so in order to keep the relationship profitable and fair the claimants agreed to reduce the rent from 2500l to 1250l per annum, yet while the rent reduction was put in writing it failed to express the end of the revision despite the original lease agreement running for a period of ninety-nine years.

Although the defendants enjoyed the reduced rent up to December 1945 despite the buildings now enjoying full occupancy with many tenants now paying higher rents than those initially agreed, however the death of the parent company’s owner revealed the oversight, whereupon the claimant and surviving business partner sought to recover rent arrears to the sum of 625l for the period between 29 September 1945 and 25 December 1945, while the defendants argued that the letter containing the reduced rent constituted a legally binding and thus enforceable contract for the remainder of the lease.

Referring to the binding effects of a promise, the court of the King’s Bench quickly balanced the probability of a breach where an agreement to reduce rents was challenged, however on this occasion the court upheld the claim on grounds that when agreeing to the reduce the rent it had been undertaken with mind to the onset of war, therefore no reasonable person would have entered into an arrangement where one party would unlawfully profit at the expense of another, while further reminding the parties that:

“[A] promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply.”

Bristol and West Building Society v Mothew [1998]

English Contract Law

Bristol and West Building Society v Mothew  [1998]
‘Two Lawyers Conversing’ by Honore Daumier

Breach of contract, negligence and breach of fiduciary duty prove central to a solicitor’s misgivings when for atypical reasons a lender sought recovery of their loss through equitable principles after other options failed.

In the late 1980s the respondents entered into a mortgage arrangement with a couple looking to secure a second property for £73,000, however due to market instability the respondents expressed that the £59,000 loaned was subject to the mortgagors paying the balance of the property from existing capital in order to reduce the risk of default, after which the acting appellant solicitor knowingly agreed to undertake the conveyance and provide a full report as contained in their contract. 

Prior to completion of the purchase the mortgagors took out a small charge against their existing property for £3,350 in order to raise the funds needed to secure the mortgage, and aware that the debt would be later secured against the new house, and yet the appellant continued with the purchase without reporting the change in financial circumstances to the respondents.

Following a successful transaction the mortgagors honoured only a handful of repayments before lapsing into default, whereupon the new house was sold as part of the repossession process, however the property crash had diminished the property’s value short of satisfying the debt by £6,000, thus the respondents sought equitable damages from the solicitor on grounds of breach of fiduciary duty through non-disclosure of the loan terms.

In this instance the court ruled in favour of the respondents and awarded damages to the effect of £59,000, less the funds raised from the sale, whereupon the appellant challenged the judgment in the Court of Appeal, who upheld the appeal on grounds that appellant’s oversight did not constitute a breach of fiduciary duty to either the mortgagees or the respondents, as the appellants had been consciously acting in good faith toward both parries throughout the disposition, therefore any lapse of skill or appreciation was accidental and not premeditated as required under the rules of equity, while the Court also reminded the parties that:

“[I]f a fiduciary is properly acting for two principals with potentially conflicting interests he must act in good faith in the interests of each and must not act with the intention of furthering the interests of one principal to the prejudice of those of the other…”

Wheeldon v Burrows (1879)

English Property Law

Wheeldon v Burrows (1879)
‘Night Windows’ by Edward Hopper

‘Derogation from grant’ and the conclusive nature of conveyances were judicially clarified when a landowner divided his estate into two distinct plots before individually auctioning them to separate purchasers under identical contracts, whereupon litigation commenced over their right to enjoy both privacy and right to light.

With a brick wall dividing the two plots, the second sale left the respondent with a brick building situated fairly close to the wall with three windows facing the first plot but with  space enough to allow natural light to pass through them, and while both contracts mirrored one another, neither included any express reservations aside from a vague stipulation that the first lot was subject to a favourable right for the purchasers and occupiers of the second plot for a indeterminable period.

Roughly five years later the appellant erected a fence obscuring the respondent’s view when using his workshop, which prompted his demolition of the obstruction on principle that when taking ownership of the property it was under an implied easement inherited from the vendor and therefore lawfully enforceable, however this resulted in litigation in which the court noted how the vendor had failed to include any express reservation to the two parties and so awarded in favour of the appellant and ordered an injunction to prevent further trespasses.

Challenged in the Court of Appeal, the Court merely upheld the previous judgment on grounds that should English law adopt a view that implied rights and reservations were automatic to a conveyance, the rights of ownership and peaceful use and enjoyment of land would be violated beyond all reason, while reminding the parties that:

“[N]o implication can be made of a reservation of an easement to the grantor, although there may be an implication of a grant to the grantee.”

Tomlinson v Congleton Borough Council [2003]

English Tort Law

Tomlinson v Congleton Borough Council [2003]
‘Solitary Swimmers’ by Pedro Covo

Reckless endangerment and the scope of relevant statute prove the nucleus of a case where the civil liberties of the general public and a local authority’s duty of care ran risk of judicial pollution when a life-altering injury led to a damages claim.

Purpose-built from derelict land, the 14-acre Brereton Heath Country Park was home to a popular lake known as the ‘mere’, and although the appeal of the lake drew over 160,000 visitors a year, the controlling borough and local authorities had prohibited swimming through the presence of warning signs, leaflet distribution, lifebelts, throwing lines and constant supervision by park rangers despite flagrant ignorance by the a majority of the attending public.

Unfortunately on this occasion the 18 year-old respondent elected to stand in little over two feet of water before proceeding to dive in, whereupon he struck his head on the sandy bottom and broke the fifth vertebrae in his neck. Now facing life as a tetraplegic the respondent sought damages from the local authority under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 on grounds that a duty of care was owed as both a trespasser and park visitor.

For clarity s.2(2) of the 1957 Act stated that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

While s.2(4) explained that:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…”

However in 1976 the Law Commission gave recommendation to a statutory duty of care for trespassers as was given effect in s.1(1) of the 1984 Act s.1(1) while s.1(5) and s.1(6) further read that:

“(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

This translated that where no award was found under the first Act then the same would apply by extension to the second, while leading authority for the conversion from visitor to trespasser was found in Hillen v ICI (Alkali) Ltd in which the House of Lords had held that:

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

And so given the fact that swimming was overtly and historically prohibited, the respondent sought remedy as a trespasser with claims that the water had muddied his view of the bottom, whereupon mention was made to Whyte v Redland Aggregates Ltd  in which the Court of Appeal had explained that:

“[T]he occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, ie, that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn…”

In the first instance the judge held that the lake simply wasn’t dangerous enough to warrant local authority liability, and so dismissed the claim before the Court of Appeal extended the occupiers liability beyond one of reasonable limits and awarded damages, however under challenge, the House of Lords fully considered the accountability of the respondent before reversing the previous judgment and restoring the original findings  on grounds that the principle that individual risk-taking in the knowledge of visible danger was incumbent upon the owner was counter-productive inasmuch as failure to acknowledge warnings was not a precursor for liability when the claimant suffers harm, whereupon the House reminded the parties that:

“[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”