Tort-Contributory negligence IV

In Fitzgerald v Lane (1987) the plaintiff was walking down a pelican crossing when the light for pedestrians turned red. He was hit by the first defendant’s car and thrown on to the path of the second defendant’s car. The plaintiff suffered severe injuries especially to the neck resulting in partial tetraplegia. Because it was impossible to determine which of the defendants caused the injury an action was brought against both defendants.

It was held that because it was impossible to determine which of the defendants had caused the injury, the defendants were jointly liable. The damages were however reduced by 1/3 in line with s1 (1) of the Law Reform (Contributory Negligence) Act 1945.

In Capps v Miller (1989) the plaintiff, a motorcyclist, was in the middle of the road, on his bike, waiting to make a right turn. He was waiting for the right time to make the turn when the defendant, who was drunk at the time, crashed into him with his car from the rear. The plaintiff was injured. Though the plaintiff was wearing a helmet at the time, the strap was not fastened and that aggravated his injuries because as soon as he was hit by the car, he was thrown onto the road and the helmet flew off. The plaintiff sued.

The defendant raised the defense of contributory negligence asserting that had the helmet been fastened in the proper or appropriate manner the resulting injuries would not have been so severe. The court in the first instance found for the plaintiff and ruled out contributory negligence. The defendant appealed.

The Court of Appeal allowed the appeal and reduced the damages that were awarded to the plaintiff by 10% on the basis that had the plaintiff been wearing his helmet in the prescribed manner, the extent of the injuries might not have been so severe.

There may have been a public policy reason for the Court of Appeal’s decision, in that, it is just not sufficient to have a helmet on because the law requires people to do so. The helmet must be worn in the proper manner or in the manner that is prescribed.

In Barrett v Ministry of Defense (1995) the plaintiff’s husband was working in the navy and was stationed in Norway. On the night of the incident he’d been drinking heavily and caught the attention of a senior officer who then instructed a petty officer to make sure he was well and to get him back to his bunk. The petty officer did as he was instructed and checked on him on a few occasions but despite that, he died during the night. His wife, the plaintiff brought an action in court alleging that her husband’s death could have been prevented had it not been for the defendants’ negligence.

The court held that under normal circumstances the navy did not owe her husband a duty of care but the court decided that a duty of care was owed in this instance because a senior officer had taken charge of matters. The duty arose as soon as the senior officer had assumed responsibility.

The damages awarded to the plaintiff were however reduced by 25% because the court found that the plaintiff’s husband had contributed partly to his own death by drinking excessively or by drinking more than what was allowed or recommended.

In Revill v Newbery (1996) the defendant was an elderly man, aged 76 at the time, who’d taken to sleeping in his shed where he kept certain valuable items. He was in the habit of sleeping with a loaded shotgun next to him.

The plaintiff, tried to break into the shed at 2 am in the morning, with his friend and the defendant who was woken up by the sounds of the break in, fired his shotgun, through a small hole in the shed and the plaintiff was hit. The plaintiff and his friend admitted their wrongdoing and were convicted but the plaintiff later brought a civil action against the defendant.

The court took into account s.1 of the Occupiers Liability Act 1984 and decided that a burglar cannot be treated as an outlaw and the plaintiff was successful. However, the damages that were awarded to him were reduced by 2/3 as per the Law Reform (Contributory Negligence) Act 1945. The judge did not consider it necessary to take into account the principle of ex turpi causa.

Copyright © 2018 by Dyarne Ward

Tort-Contributory negligence III

In Froom v Butcher (1975) the plaintiff was involved in a car accident which was caused by the defendant’s negligence. While the defendant was held liable, the claimant was not wearing her seat belt at that time of the accident. The law that made the wearing of seatbelts mandatory only came into force on the 31st of January 1983 – prior to that it was recommended that passengers in a car wear seatbelts. Fitting of seatbelt anchorage points in all new cars was made compulsory in 1967.

Therefore it is possible to surmise that the government was quite serious about making the public aware of the benefits of wearing seatbelts and it was only a matter of time before the law came into effect.

It was held that the plaintiff would not have been injured but for the defendants negligence but the plaintiff also had a duty to take the necessary precautions to mitigate or reduce any injury he or she may incur by taking recommended precautionary steps and therefore the damages that the plaintiff received were reduced in proportion to the amount that he or she was deemed to have contributed to his or her own injury.

In Owens v Brimmell (1977) both the plaintiff and the defendant were out drinking and after they’d had about 8 pints each got into a car to drive home. During the journey, the driver lost control of the car and the car crashed into a lamppost resulting in injuries to both the driver and the passenger. The plaintiff, who was the passenger sued.

The court acknowledged that the accident was caused by the recklessness of the driver but the plaintiff was not entirely without fault. He had made the conscious decision of getting into a car with someone who was drunk behind the steering wheel and therefore the damages that were awarded to him were reduced by 20% and he was found to be contributorily negligent.

It is worth comparing the decision in Owens v Brimmell (1977) with the decision in Traynor v Donovan (1978). In Traynor v Donovan (1978) the plaintiff got into a car with the defendant, who was drunk, behind the wheel. Though he was above the alcohol limit for drivers, the defendant’s condition was not obvious or apparent. The car subsequently crashed and the plaintiff sued. The defendant contended that the damages awarded to the plaintiff should be reduced because the plaintiff had knowingly got into a car with a driver who’d been drinking.

The defendant was unsuccessful. The court held that the defendant was liable and the plaintiff would only be contributorily negligent if he or she knew that the defendant had been drinking. In this instance the court found that there was nothing to indicate that the plaintiff was aware of the fact that the defendant had been drinking and therefore the plaintiff was not contributorily negligent.

The decision in Traynor v Donovan (1978) was reaffirmed in Malone v Rowan (1984). The plaintiff’s husband got into a car with a driver who was drunk. The car subsequently crashed and the plaintiff’s husband was killed in the accident. The plaintiff sued.

The court in line with the decision in Traynor v Donovan (1978) found that in a situation where the plaintiff gets into a car with a driver who is drunk but there is nothing to indicate that the driver is drunk or the plaintiff has no reason to believe that the driver is drunk, then the plaintiff cannot be found contributorily negligent if an accident were to occur.

In order for any defendant to successfully raise contributory negligence the plaintiff in most instances, though there may be exceptions, must be aware of all the facts. Let us go back briefly to the situation where the plaintiff and his friend entered a mine with the unstable roof and the employers were about to bring the roof down. The plaintiff in that instance was found to be contributorily negligent because he was aware of all the facts.

If the plaintiff wasn’t aware that the roof of the cavern was unstable or if he wasn’t told to avoid the mine, shaft or cavern because the employers were about to bring the roof down and if he had entered it in the normal course of employment than he would not have been contributorily negligent.

Likewise in the case of the motorcyclist who was involved in an accident and found to be contributorily negligent because he wasn’t wearing a helmet, most people would know that riding a bike without a helmet is dangerous and any injury that was incurred as a result of an accident, while riding a bike, will be aggravated if the rider does not wear a helmet.

Similarly in the case of the driving instructor who got into the car with Mrs. Weston, he was aware that Mrs. Weston was not a diligent driver.

Copyright © 2018 by Dyarne Ward

Tort-Contributory negligence II

In Sayers v Harlow UDC (1958) the plaintiff used one of the public toilets provided by the defendants. When she tried to leave the cubicle, she realized that the door was without a knob or a handle or the knob or the handle had become undone. She tried fidgeting with the door and when that was unsuccessful she tried climbing out the window by standing on a toilet roll holder which gave way and the plaintiff was injured as a result. The plaintiff sued.

The court held that it was reasonable to expect that doors in public toilets would open both ways and the means to open the doors would always be readily available. It was also foreseeable that if someone was trapped in a public toilet they’d try, in some way or other, to get out and the longer a person is stuck or trapped in the toilet the more frantic or desperate he or she would become. The plaintiff was successful and the council was held to be liable.

The plaintiff’s damages were however reduced because the court found that, while trying to escape was by no means unreasonable, the court compared the situation to that of an unlawful detention, doing so while resting the plaintiff’s weight on a slender toilet roll holder was an act of foolishness. The damages awarded to the plaintiff were therefore reduced accordingly.

Contributory negligence while it applies to adults may not apply to children if the same situation were to occur. The law takes into account the plaintiff’s age and while a duty may be imposed on an adult to take reasonable care, that duty may be relaxed if it was a child that was injured.

In Gough (an infant) v Thorns (1966) three siblings, two boys and a girl, aged 17, 10 and 13 respectively, were waiting on the pavement to cross the road. A lorry approached and the driver slowed down signaling for the children to cross the road. Because of the size of the lorry, the siblings were unable to see a car behind the lorry and as they crossed the car crashed into the children and the girl aged 13 was seriously injured. The plaintiffs sued and the defendant argued that the children were contributorily negligent.

The court held that while the defense of contributory negligence may apply to adults in this instance, the same cannot be said for children because it is unreasonable to expect them to exercise the same skill and care as an adult. Furthermore, the defendant was under a duty to exercise due care and caution while overtaking. The plaintiffs were successful and were found not to be contributorily negligent.

In O’Connell v Jackson (1971) the plaintiff was a motorcyclist who crashed while on his motorbike into a car that was driving negligently. The plaintiff sued. The defendant contended that had the plaintiff been wearing a helmet the injuries might not have been so substantial.

The court held that the defendant was guilty but the damages that were awarded to the plaintiff were reduced by 15% because the plaintiff’s failure to wear a helmet had aggravated his injuries.

In Nettleship v Weston (1971) the defendant was a learner driver who employed the plaintiff to help her fine-tune her driving skills. While they were on the road the defendant turned a bend and the plaintiff told the defendant to straighten the wheel. The defendant failed to do so and in order to avoid an accident the plaintiff pulled on the handbrake but despite that the car ran over a pavement and hit a lamppost and the plaintiff was injured in the accident that followed.

The plaintiff sued. The defendant pleaded volenti and argued that by entering into the car the plaintiff had voluntarily accepted the risk. The court rejected this argument and the plaintiff was successful. The court held that despite the fact that the defendant was a learner driver the duty imposed on her was the same duty that was imposed on any other driver.

In this particular instance in order for the defendant to successfully plead volenti the plaintiff must have either impliedly or expressly waived his right to seek a legal remedy.

The plaintiff’s damages were however reduced by 50% because the court found that the plaintiff had been contributorily negligent and his failure to exercise due care and caution had exacerbated his injuries.

Copyright © 2018 by Dyarne Ward

Tort – Contributory negligence I

S.1(1) of the (Law Reform) Contributory Negligence Act gives us the scope of contributory negligence as defined by law – Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

(a) this subsection shall not operate to defeat any defense arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

Contributory negligence is a defense i.e. when a defendant is adjudged to be negligent for doing an act he or she should not do or for failing to do something which under normal circumstances others would do or something that the law compels the defendant to do, the defendant can then adduce evidence to show that it was not solely the defendant’s act or omission which led to the damage and that the plaintiff was also partly responsible because the plaintiff failed to exercise due care or caution or failed to act in a manner that was reasonable.

If the defendant is successful the damages that are awarded to the plaintiff will be reduced accordingly or to the extent the plaintiff had contributed to the damage.

In Davies v Swan Motor (1949) the plaintiff was standing by the side of a garbage truck. He was standing alone at the time and the truck was moving slowly because the plaintiff had to jump off at regular intervals and collect the waste and dump it into the back of the truck. A bus overtook the lorry and the plaintiff was killed in the accident that followed. His estate sued and they were successful.

It was held that the bus driver ought to have exercised due care and caution while driving the bus. It was foreseeable that garbage trucks would have workers standing on the outside. The trucks are built in a manner in which they can accommodate, in most instances two workers standing on either side of the truck, and any negligence on the part of other drivers would most likely lead to a mishap.

The damages that were awarded to the plaintiff however were reduced by 1/5 because despite the fact that these garbage trucks were built to accommodate workers standing on the outside, the workers also had a duty to ensure that they did so skillfully or in accordance with the level of skill that is expected or required of them.

In Jones v Livox Quarries (1952) the plaintiff was working in a quarry and during his lunch break he jumped on to the back of a tractor unknown to the driver, despite the fact that it was against the company rules to do so. While the plaintiff was on the back of the tractor, it was hit from the rear by a truck that was driven recklessly and the collision that followed resulted in serious injuries to the plaintiff. The plaintiff sued.

The court held that that the defendant was liable because it was his recklessness that had caused the accident but the damages that were awarded to the plaintiff were reduced by 1/5 because the plaintiff had also contributed to the injuries that he had sustained by jumping on to the back of the tractor without the knowledge of the driver when the rules of the company specifically prohibited him from doing so.

In Stapley v Gypsum Mines (1953) the plaintiff’s husband was working in a mine and he was informed that the roof of the cavern was not steady and company was in the process of bringing the roof down. In the meantime, employees were prohibited from entering the cavern. The first attempt failed and before the employers could try again the plaintiff and another worker entered the cavern. The roof collapsed and the plaintiff was killed in the accident. The plaintiff was working alone at the time. His widow sued.

The court held that that the defendants were liable because they should have taken more care to prevent workers from entering the mine for example sealing the entrance to the cavern off temporarily. However, the court also found that the plaintiff had contributed to his own injuries by doing something that was specifically prohibited by his employers and therefore the damages that were awarded to his widow were reduced by 50%.

Copyright © 2018 by Dyarne Ward

Tort – Occupiers liability cases IX

In Perry v Harris (2008) we are once again confronted with a situation where an occupier has organized a gathering on his or her premises and has either equipment that the visitors can use or has shows for the benefit of the visitors along the lines of Gwilliam v West Hertfordshire Hospital NHS Trust (2002) and Bottomley v Todmorden (2003).

In this instance, the defendants organized a party and the children in attendance were allowed to use a bouncy castle. The plaintiff aged 11 years old was injured, while using the castle, when one of the bigger boys decided to get into the act. The plaintiff sued. The court decided that the injury that the boy sustained was not a result of the defendants’ negligence but rather that of the parents.

While it is impossible to impose a duty on parents to supervise their children all the time, imposing such a duty would be contrary to public policy, it was, on the other hand, reasonable to expect parents to supervise their children in instances or in situations where they are likely to incur or sustain some form of injury especially during play.

It was foreseeable that other children would also use the castle and while they were playing, it was likely that some injury might befall the children if the parents did not take proper care and caution. The plaintiff was unsuccessful.

In Mann v Northern Electric Distribution (2010) the plaintiff a 15 year old boy suffered severe burns and sustained serious injuries when he climbed a fence around a electricity substation to retrieve a football.

The court once again had to decide on the duty that is owed to a trespasser as per s(1)(3)(b) of the Occupiers Liability Act 1984 and as we have seen thus far there are two elements that a trespasser has to satisfy before he or she can be successful in a claim.

The first question that is to be asked is, is it reasonable to impose a duty on the occupier under the circumstance? and this then leads us to the next question, in that, could the defendant have anticipated the actions of the trespasser?

Accordingly, the court held that it was not reasonable to impose a duty on the defendants under the circumstances and the defendants could not have anticipated the risk or the injury that followed when the plaintiff undertook the risk.

In Harvey v Plymouth County Council (2010) the plaintiff, aged 21, who was drunk at the time crashed into a fence and fell down a slope and as a result sustained serious injuries.

The property belonged to the council and despite fencing the area close to the edge of the slope off, it had neglected to maintain the fence and as a result the fencing had deteriorated. The grounds were frequently used for recreational purposes and there was an implied license that allowed visitors to use it for recreational activities.

S2(2) of the Occupiers Liability Act 1957 defines the scope of this license. “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”. The plaintiff sued.

The court held that the defendants were not liable. The duty to visitors existed only in so far as the land or the property was used in the manner which it was intended i.e. in this instance for recreational purposes and since the land or the property in question was not used for the purposes that it was intended therefore no duty existed.

In McCarrick v Park Resorts (2012) the plaintiff dived into a swimming pool but because of insufficient depth sustained serious injuries and subsequently became a tetraplegic. The plaintiff sued. The plaintiff’s argument was that there were no visible signs posted that warned him of the dangers of diving in the pool or that indicated that the pool or the area of the pool that he was diving in was shallow.

The court found in favor of the plaintiff and decided that signs that were posted to warn visitors of any dangers should be done so in a manner that was plainly and clearly visible. To do otherwise would defeat the purpose. The court however reduced the damages that the plaintiff received by one third because it found that the claimant was contributorily negligent.

Copyright © 2018 by Dyarne Ward

Tort – Occupiers liability cases VIII

In Bottomley v Todmorden (2003) the defendants, a cricket club, organized a show and part of the show was a fireworks display. During the show, the contractors in charge of the fireworks display called upon the plaintiff to light one of the fireworks, a particularly large mortar and when the plaintiff set the mortar alight, it exploded and as a result the plaintiff sustained or incurred injuries. The plaintiff sued see Gwilliam v West Hertfordshire Hospital NHS Trust (2002). The court held that an organizer was liable or accountable for not selecting a reasonably competent contractor.

Occupiers could at times employ others to carry out acts that are normally considered or deemed to be dangerous provided that the contractors that they employed to carry out the tasks or duties exercised due care and caution. The defendants were held to owe the plaintiff a duty of care.

In Atkins v Butlin’s Skyline Ltd (2005) the plaintiff was blind and he was holidaying with his wife and daughter at the time. The plaintiff entered a lift and when he had reached the correct floor, before he could completely walk out, the lift doors closed on him, injuring him in the arm and shoulders. The plaintiff sued. The court held that those who operated lifts and had other public amenities on their premises had to take into account the needs of people with disabilities.

In Maguire v Sefton Metropolitan Borough Council (2006) the defendants operated a leisure center that had exercise machines for public use. The plaintiff was a paying visitor who used an exercise machine and because the machine was faulty or defective the plaintiff was injured.

The maintenance of the machine was contracted to a third party who was under a duty to ensure that the machines were in proper working order. The plaintiff sued. The court held that the Occupiers Liability Act 1957 imposed a common law duty and that there was an implied warranty that the machines could be safely used for the purposes that they were intended.

In Keown v Coventry Healthcare NHS Trust (2006) the plaintiff was playing on the grounds of a student accommodation owned by the defendants. The grounds were frequently used by members of the public to have access to a hospital. There were two fire escapes close to the accommodation one with bars on it and the other without.

The plaintiff, aged 11 at the time, climbed the fire escape in order to show his friends how it was done and while doing so slipped and fell and as a result, sustained severe injuries, including brain damage, which prompted him to commit various sexual offences see Meah v McCreamer (No. 1) (1985).

An action was brought in court for compensation. Does a fire escape constitute a premises? The court decided that fire escapes constituted a premises in the ordinary sense of the word.

The court also considered if it was possible to impose a duty with regards to children when no such duty would have been imposed on adults.

In Donoghue v Folkestone Properties Limited it was decided that A duty will only be imposed on a defendant with regards to a trespasser under s1(3) of the Occupiers Liability Act 1984 when it was reasonable to do so. In Swain v Natui Ram Puri (1996) the court considered the duty that was owed to a child trespasser and decided that a duty would only arise if under the circumstances it was reasonable to impose a duty. Could the defendants in the present case have anticipated that a 11-year-old boy would climb a fire escape in the manner that he did even if the defendants knew that the grounds were frequently used by children? The court held that the defendant was not liable.

In Siddorn v Patel and others (2007) the plaintiff was injured when she fell through a skylight while she was dancing on a garage roof. The plaintiff brought an action against her landlord under s(1)(3)(b) of the Occupiers Liability Act 1984. The garage though owned by her landlord was not a part of her tenancy and the landlord had never given the plaintiff any permission to be on the roof of his garage. The court had to once again consider the duty that was owed to a trespasser.

The court held that the risk of someone dancing on the roof of a garage was not something that was foreseeable and the roof was used in a manner or for purposes that it was not intended or supposed to be used. The defendant was held to be not liable.

Copyright © 2018 by Dyarne Ward

Tort – Occupiers liability cases VII

In Blackpool and Fylde College v Burke (2001) the plaintiff was an in-campus student. It was customary for the college students to attend fitness classes regularly and one morning when the plaintiff attended a fitness class, she was standing beside a stack of chairs, with her back to the chairs, talking to a friend when the stack of chairs fell on her from behind and as a result the plaintiff sustained serious injuries including aggravating an existing knee condition.

The plaintiff sued. The court held that the defendants did not owe the plaintiff a duty of care to ensure that the chairs were stacked safely. If the plaintiff were allowed to succeed it would impose a duty on anyone else that stacked chairs and if such a duty was imposed it might not be practical. Did the college have a duty to warn anyone in the room that there were stacked chairs and that the chairs might pose a danger? Stacked chairs ordinarily, if they were stacked in the proper manner, will not pose a danger and therefore the college did not owe a duty to warn anyone entering the room that there were stacked chairs.

In Darby v National Trust (2001) the plaintiff’s husband drowned in a pond owned by the defendants. The defendants owned 5 ponds in total. 2 of the ponds were used for fishing and the council had taken steps to prevent or discourage visitors from swimming or paddling in the other 2 ponds. With regards to the pond the plaintiff’s husband drowned in, which was relatively shallow, the defendants hadn’t taken any steps or measures to prevent visitors from swimming or paddling in the pond.

The plaintiff’s husband was familiar with the pond and had used it many times before. On this occasion, the plaintiff’s husband swam to the middle of the pond while playing a game and subsequently drowned. The plaintiff brought an action against the defendants claiming that the council had not taken adequate steps to prevent others from using the pond and that the council had failed to warn visitors of the dangers in using the pond.

The court held that the council did not owe the plaintiff a duty. Swimming in a pond was dangerous given the fact that the sand below can give way at any time and most swimmers are aware of the dangers of swimming in a pond. The council was not under a duty to warn the plaintiff of something that was fairly obvious and of something that most people would know about.

In Fairchild v Glenhaven Funeral Services (2001) the plaintiffs were independent contracts who were exposed to asbestos dust during the course of their employment and as a result contracted mesothelioma, a cancer of the mesothelial tissue, which is commonly caused by exposure to asbestos. The plaintiffs sued.

The court in line with the decisions in Margereson & Hancock v JW Roberts Ltd (1996) and Holtby v Brigham & Cowan (2000) held that the defendants were liable but the damages were reduced and the court took into account the numerous times the plaintiffs had willingly exposed themselves to asbestos dust, in accordance with the Law Reform (Contributory Negligence) Act 1945.

In Eden v West & Co (2002) the plaintiff was a carpenter and while he was working bricks from a structure collapsed on him and the plaintiff was injured as a result. The plaintiff in this instance had an implied license to be on the premises and the defendants were held to be liable. When a visitor enters a premises to perform a duty, implied by law or otherwise, it is on the grounds that it would be safe for him or her to do so.

In Donoghue v Folkstone Properties (2003) we examine the duty that arises under s.(1)(3) of the Occupiers Liability Act 1984. The plaintiff decided to go for a swim and dived off a slipway belonging to the defendant and hit his head on an obstruction below the water and thereby sustained serious injuries. The plaintiff who was an expert swimmer and diver sued.

The court decided that in order to determine if a duty existed under s.(1)(3) of the Occupiers Liability Act 1984 they had to look at the circumstances of the alleged breach. The plaintiff decided to go for a swim in the odd hours of the night, when it was dark, on boxing day i.e. in the middle of winter. If it was summer and during the day then we can say with some degree of certainty, that the defendant should have foreseen or anticipated the risk. However, it is unreasonable to expect that the defendants could anticipate that someone would go for a swim in the middle of winter and close to midnight, at that. The defendants were held not to be liable. A duty will only be imposed on a defendant with regards to a trespasser under s1(3) of the Occupiers Liability Act 1984 when it is reasonable to do so.

Copyright © 2018 by Dyarne Ward

Spirits

Spirits are best defined as souls that after leaving the body at death have refused to cross over and that could be due to several reasons but the most common believe is that the souls of the dead that remain or linger as spirits, do so, because they have died prematurely or before the stipulated time of death.

Because the spirit retains its memories after death and its will, the spirit appears to be able to choose, and some spirits may choose not to cross over, even if they have died at the stipulated or preordained time. This is especially so if the spirit is overly attached to material possessions or someone or something that it dearly loves.

Dying at the predestined or preordained time doesn’t necessarily mean dying at an old age and some people are fated to die young. Others may opt to die, for example commit suicide or agree to euthanasia, because they cannot cope with the burdens or material existence or the pain that results from an illness or an injury.

Life today is not simple especially because we tend to get detached from the spiritual side of things and become overly concerned with material possessions and that drive to succeed and acquire wealth can turn against us especially when we don’t realize it or acquire the rewards that we deem fitting or we are entitled to. It’s always good to understand or appreciate that there is a higher power at work and we all have our roles to play in the master plan.

We also have to take into account that the stresses we face today might be due to the existence that we have led in our past life or lives and those sins may come back to haunt us in the present life and therefore, where possible, it is always good to live a good life, but that of course does not mean that we throw caution to the wind, for example don’t invite homeless strangers over to stay with you because you feel that by doing so you’ll accrue good karma.

The chances are high that when you come back or return home from work the next day, your house will be empty. Reason, temperance, prudence and diligence, always pave the way to a better existence.

A large percentage of spirits that linger or refuse to cross over do so either because they have become overly attached to their material possessions or their loved ones or because they have unfulfilled needs for example a desire for revenge that has not been met or satisfied.

The latter are normally classed as angry spirits or malicious spirits and they are a lot more likely to possess than the former class or category of spirits who have a higher propensity to haunt say for example a house that the dead person overly loved or treasured and the spirit may choose to remain there even after death.

Just because someone dies doesn’t automatically mean that they’ve reformed and realized the error of their ways and have miraculous been transformed. The spirit still retains its past memories and the chances are high that the spirit despite not having any shape or form is still going to retain the characteristics of the body it occupied when it was alive and therefore if the person who occupied the body was a particularly nasty person then the chances are high that the spirit will be malicious and if that spirit refuses to cross over then it will have the tendency to possess.

Someone who was not afraid to kill when he or she was alive is hardly going to be afraid to do so when he or she is dead and that is one of the reasons why, during exorcism, we find that the possessed person speaks or says all sorts of vulgar things, or sometimes even drives the body it has possessed to do criminal acts or acts no other sane person would do.

I admit some of it may be exaggerated but it is not always demonic possession that drives the possessed person to say and do these things.

Possession is not always a disease of the mind and it is not only people who are mentally infirm that are possessed. I think we have all come across normal people that sometimes make us wonder if the person is possessed because they are overly driven or overly zealous.

We have to understand that it is not always possible to help others or drive away spirits that have possessed someone or haunt a particular place. We have to remember that we are dealing with an undefined type of energy and no one knows how it will react and that is one reason why exorcisms don’t always work.

What we can do however is to prepare for death and accept the fact that it is going to happen and prepare ourselves for the next stage and when we do die and the soul leaves our bodies the transition will be a lot smoother. Lead a good life and when the time comes say your goodbyes be secure in the thought that a new journey awaits.

Copyright © 2018 by Dyarne Ward

The soul

Having acquired some understanding of the twofold nature of the human body it is only appropriate that we examine the transparent and translucent entity that fuels the body or the soul. The soul is best described as the energy that drives the body and like all forms of energy it can neither be created nor destroyed but it can change from one type of energy to another just like the soul after the death of the physical body either achieves liberation or migrates to a new body that is entirely different in shape and form.

The migratory nature of the soul may also explain the possession phenomenon from the perspective that while a majority of the souls, that leave the body at death, are either liberated or acquire a new body by being transferred to the body of an infant when it is in the womb of the mother, a small portion of souls choose to remain behind and inhabit the body of a grown person.

This usually occurs from the time the child is an adolescent until he or she completes her youth. This is the most precarious time for any person i.e. the time he or she is growing up and while the affects of possession may appear later, actual possession normally takes place between the ages of 10 to 24.

It’s also one of the reasons why pregnant women, are prohibited from going to funeral houses or being a part of the mourning process and while it is reasonable to mourn the death of a loved one in their hearts, all things must at times be within reason, it is not advisable to be part of the funeral proceedings or visit the graveyard frequently.

According to Hindu theology, the mourning period for the departed, if they die a natural death, is one year and after one year the soul is deemed to have either attained liberation or is on its way to being reincarnated. The mourning period however is longer for those who die as a result of accidents and even longer for those who die as a result of suicide.

The mourning period is essentially the time the soul comes to terms with death and while it retains its memories from its past existence, mourners try and coax the soul into letting go and try and persuade it to move on.

When the soul assumes a new identity or migrates to a new body the soul still retains the memories from its past life, but as the body is formed and the mind develops, the conscious mind takes over and the older memories, while they are still there, are pushed so far back that the new body hardly remembers them with the exception of random images that appear out of nowhere and disappear just as quickly, in sudden flashes, and unless the body is subjected to hypnosis or one decides to practice the ancient art of yoga to become more acquainted with the mind, one might never really uncover details of one’s past existence.

It is normally easier to persuade the soul to cross over when death is natural or occurs at the stipulated time and a lot more difficult when death is premature. There are some schools of thought that believe that the soul will linger around its loved ones or its favorite possessions until the appointed or stipulated time of death and this once again to some degree explains the possession phenomenon.

Normally at the time of death, if the body accepts death as a foregone conclusion and is willing to come to terms with it than there isn’t a problem and the cycle continues until the time the soul attains liberation or is reunited with the source.

The problem only arises when the dying body refuses to accept death or the spirit that leaves the body refuses to cross over and what remains is an unquantifiable amount of energy that has no shape or form and has a propensity or tendency to possess. While there are some who would put it down to a disease of the mind, the answer is far more complex than that.

The soul in short, according to Hindu theology, is an unquantifiable amount of energy that drives the body that separated from the source at the start of time or the beginning of the universal cycle and seeks to reunite with the source. The journey between separation and reunification, or the bit of it that concerns the body, is existence as we know it. As for its qualities, we can safely say that the soul has all the qualities and attributes of energy.

Copyright © 2018 by Dyarne Ward

Tort – Occupiers liability cases VI

In Rae v Mars (UK) Ltd (1990) it was held that when there are dangers ahead, especially due to poor visibility, there must be sufficient signs posted, notice given or reasonable attempts made to alert a visitor of the dangers ahead.

According to the facts of the case a deep pit was dug close to the entrance, on the inside of a shed, and there was no lighting in the shed and therefore the pit posed a danger to any visitor or trespasser who entered the shed.

The decision is important especially when it comes to children because while adults are under a duty to exercise due care and caution under most circumstances, even when they are walking down the street, the same cannot be said for children and even if they are repeatedly told or warned about the dangers of doing something, there is still a very high possibility or probability that they are going to disregard or ignore those warnings.

Let’s go back briefly to the example of the staircase. It is probable that adults, once they are aware of the law, in respect to climbing up and down a staircase, will exercise due care and caution in doing so but the same however cannot be said for children. Whatever adults decide there is a very high probability that children will do the exact opposite.

In White v The Council of the City and District of St. Albans (1990) the plaintiff had taken a short-cut across the defendant’s fenced-off property and while he was doing so he fell into a trench and as a result sustained injuries. The plaintiff sued on the grounds that the fact that the defendant had erected a fence around his property meant that he was aware that the property was being used as a short-cut and that there were others who used the property and thus the defendant had to take reasonable care and caution to ensure that no harm should befall anyone who used his property, as per s.(1)(3)(b) of the Occupiers Liability Act 1984.

The court however found in favor of the defendant and rejected the plaintiff’s argument and decided that just because a person erects a fence across his property does not mean he or she is aware that there were others who were using the property.

Farmers, including sheep and cattle farmers, would be the most common example of people who fence-off their property because they don’t want any harm to befall the animals and they do not want the animals to get in the way of traffic. If the animals got on a road they could cause a very serious accident.

Likewise, dog owners, also, normally fence off their property to prevent their dogs from getting out. Just because a property is fenced off, it doesn’t necessarily mean or imply that the owner, occupier or the person who has control over the property is aware that the property is being used as a short-cut.

In Swain v Natui Ram Puri (1996) a 9-year-old child got on the defendant’s roof and subsequently fell off and sustained injuries as a result. The matter was brought before the court and the defendant contended that he did not have any knowledge that the plaintiff was in the area or had no reasonable grounds to anticipate that a 9-year-old child could get on his roof.

S.(1)(3) of the Occupier Liabilities Act 1984 states “An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if …. S.(1)(3)(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not);

It is difficult to say with any degree of certainty that a 9-year-old child could get on top of the defendant’s roof and it is it is difficult to expect the defendant to anticipate that a child of that age could get on his roof. The defendant was held to be not liable.

In Ratcliff v McConnell (1999) the plaintiff who was a student at a college after a night out decided to go for a swim in the college pool with his friends. At the time when they arrived at the pool, there was a notice on the closed gates that informed any would-be user that the pool would be closed from 10 pm to 6.30 pm and the use of the pool during those hours was prohibited.

The plaintiff and his friends climbed over the gate and made their way to the pool. There were clear markings that differentiated the shallow end of the pool from the deep end but because of the poor lighting the plaintiff and his friends failed to see the markings. The plaintiff subsequently dived into the shallow end of the pool and sustained serious injuries. The plaintiff sued.

The court had to once again look at s.(1)(3)(b) to determine if the college owed the plaintiff a duty of care. The duty that the court had to consider was that which was owed to a trespasser. The court decided that because there was only one past accident in the pool and the victim was a visiting college student and no accident had befallen any student from the college in the past, the defendants were not liable, or could not be held accountable. It is worth comparing the decision in Ratcliff v McConnell (1999) with that in Rae v Mars (UK) Ltd (1990).

Copyright © 2018 by Dyarne Ward