Tort – Occupiers liability cases III

In Eric Glennie v University Court of the University of Aberdeen (2013) the plaintiff slipped and fell while he was playing tennis on a court owned by the defendant. There was a patch of green moss growing on the astroturf and the plaintiff slipped when he stepped on it and as a result sustained injuries. While the defendants admitted that they owed the plaintiff a duty of care, the court held that the defendants were not liable because there was insufficient evidence to establish that it was indeed the defendants’ negligence that had caused the accident. Astroturfs were naturally more slippery than other surfaces and it was up to the plaintiff to take due care. Furthermore, there was nothing to indicate that it was the moss that had caused the accident.

In Fiona Brown v East Lothian Council (2013) the plaintiff hired a hall from the town council for her dance class (zumba). She normally conducted her classes in a gymnasium but on this particular occasion the gymnasium was unavailable. The plaintiff slipped and fell while she was conducting her class and her accident was caused by the uneven flooring of the hall. The plaintiff sued claiming that the hall was not a suitable workplace and the council countered by arguing that the hall was not intended to be used as a workplace and therefore they should not be held liable or accountable. The plaintiff was unsuccessful.

In Michael Leonard v The Loch Lomond and the Trossachs National Park Authority (2014) the plaintiff’s 12-year-old son was walking together with his family up a hill and after a certain point decided to walk ahead. He was walking up the steps at the time and later he was found at the foot of the hill, having fallen off while he was climbing the hill, and he sustained injuries as a result of the fall.

His father brought an action against the park authorities claiming that the steps that were provided for visitors to walk up the hill weren’t up to acceptable standards for example they were uneven, built at odd angles, inconsistent and there were no handrails that visitors could hold on to while climbing the steps or suitable fencing that could prevent a fall.

In the previous case (Fiona Brown v East Lothian Council (2013)) the plaintiff was unable to claim despite being injured in an accident that was caused by uneven flooring because the hall was not used for the purpose it was intended. Here the plaintiff’s son was injured and his injury was caused partly or partially at least by uneven steps but he was using it for the purpose that it was intended for. Would the defendants be liable in this instance?

It can be argued on behalf of the council that any visitor ought to take reasonable care while he or she was climbing up or going down a flight of stairs or a series of steps. Going back to the decision in Moira Brown v Lakeland Ltd (2012) the court decided that anyone who uses a flight of stairs or climbs up or down a series of steps has a responsibility to exercise due care and caution because the chances were high that if they were careless, an accident might result from their carelessness.

It would be entirely different if there was smidge of oil or something on the steps that had caused the plaintiff to fall as in the case Robinson v The Post Office (1974) or Ward v Tesco Stores Ltd (1976) but there was no evidence to indicate that there was some other factor that had caused the accident.

The court held that there was nothing to suggest that the defendants lack of care had caused the mishap and that the defendants did not owe the plaintiff a duty of care. The steps were an ordinary feature that were neither concealed nor unused and had become a permanent part of the landscape.

Was there a special duty that was owed to children that would not otherwise be owed to adults? In Bourne Leisure Ltd v Marsden (2009), the mother while on holiday in a caravan park was speaking to someone in the next caravan when two of her children disappeared. The boys had made their way towards a pond that was fenced off and had somehow managed to climb the fence and make their way to the pond. One of the boys aged 2½ drowned. The parents sued. The court held that children could disappear anywhere at any time and the defendants were not liable. They had to some degree taken adequate preventive measures.

Copyright © 2017 by Dyarne Ward

The subconscious mind

The subconscious mind is the vast depository that stores all our memories from the past and the present and the mind that hypnotists resort to for answers and solutions during hypnosis. It is also the mind that is most utilized by ascetics and mystics and it is the mind that rewards them with the ability to foretell the future and bestows upon them the powers of clairvoyance and precognition. The full potential of the subconscious mind remains unknown and in most instances, it’s never fully realized or utilized.

We are all born with our subconscious faculties intact but a majority of us choose not to use it and we are more reliant on the conscious mind because it works towards fulfilling the needs of the senses especially given the fact that we live in a day and age where we are all prone to giving in to our cravings and desires. In fact, we are driven by our ambitions and aspirations and that coupled with the rational thinking process or logic driven thought leaves almost no room for the subconscious mind to maneuver. It remains a hidden unexplored facet of the mind that is rarely or never used.

In addition to that our habits, for example, excessive indulgence in alcohol or smoking alters the composition of the chemicals in our mind, sometimes so drastically that we may never realize the full potential of our mind which at the end of the day is a waste because having lived, it is only fitting that we try to attain the higher truths before we die and our soul passes on to another body.

It is not only cigarettes and alcohol that impede the workings of the subconscious mind. The environment that we live in also plays an important role especially with regards to the food that we consume. Food that is grown with the use of chemicals or animals that are raised with steroids retain the chemicals and steroids and when the meat and vegetables are cut, cleaned, cooked and consumed, the chemicals that are retained in the meat and vegetables make their way into our bodies and in addition to causing illnesses like high blood pressure and diabetes, to name a few, they also disrupt the chemical balance in our bodies and that makes it all the more difficult for us to utilize the subconscious mind.

Ideally if we want to go on the path of self-realization and explore our inner selves it is best to consume only organic food or food that is grown or cultivated organically. Cow urine and dung make ideal manure for food cultivation.

Having said that, some people are born with the nexus to the subconscious mind stronger than others and these are the people that display the highest propensity to be either clairvoyant or precognitive. In addition to that they also tend to excel in other facets of life.

Because no one really knows the extent of the knowledge that is stored in the subconscious mind, when someone with his or her link to the subconscious mind intact starts exploring their subconscious mind, there is no telling what the person will uncover.

There are also schools of thought that suggest that the subconscious minds of all persons, past and present, are linked and when one taps the subconscious mind, one is able to draw on the memories of someone else, Einstein perhaps, or some little known mathematical genius that no one has ever heard of and therefore the knowledge that one gains when one builds the nexus with the subconscious mind can’t be defined or quantified.

Initially however like all things related to the subconscious mind, this knowledge appears in random flashes or images and it often happens when the conscious mind is relaxed, tired or just too exhausted.

The conscious mind when it is active keeps the subconscious mind at bay and leaves it with almost no room or scope to maneuver and the only time that the subconscious mind can make any sort of an impression is when the conscious mind is asleep or too tired to react and this is when people receive images or flashes from the subconscious mind or in other words when they least expect it because the conscious mind is just too relaxed, tired or exhausted to be bothered.

We have all experienced these random flashes of images at some time or other and that just tells us that our subconscious faculties are working perfectly well but in order to harness its full potential we need to put the conscious mind to sleep, so to speak, or keep it in a relaxed state or a state where one doesn’t have to think and the best way to do that is through meditation, using the techniques prescribed by yoga. There is no telling what one will uncover when one successfully builds that bridge between the conscious mind and the subconscious mind but whatever it is, rest assured it will be rewarding.

Copyright © 2017 by Dyarne Ward

The conscious mind

Having acquired some understanding of the twofold nature of the mind let us now further explore the workings of each component of the mind so that we have a better understanding of the mind and its workings. Let us start with the corporeal mind or the temporal mind, or the mind which in most cases and instances is known as the conscious mind primarily because it is the mind that operates during the waking state and continues to operate until the body is asleep or enters the transcendental or meditative state.

Before we go any further I am going to briefly explain the practices of the ancient Hindus to show the order of precedence and to explain where the emphasis lies with regards to faith, when it comes to deciding which mind is more important or choosing between the conscious mind and the subconscious mind. As far as Hindu ascetics and monks are concerned, the latter or the subconscious mind, is far more important that the former or the conscious mind.

In the beginning, the early Hindus (we are going back to the Indus Valley civilization and the years preceding that) all Hindus were first and foremost ascetics i.e. they existed first in the meditative or the transcendental state.

The Mohenjo Daro and Harappa cities, for example, were built to facilitate worship and this is evident from the city itself. It is the first civilization in the world or the earliest civilization in history to have a sanitation system and cleanliness not only of the mind but also of the body is important in the Hindu faith. The legacy that has been left behind by the Indus Valley civilization is found in many aspects of the Hindu faith today.

Initially the conscious mind was the subservient mind and the Hindus in this ancient civilization spent most of their time in the meditative state and the conscious mind only came into play when the body needed to fulfill its bodily requirements and activities related to that for example eating and fulfilling other duties that perpetuated existence like tilling the fields or ensuring that there was sufficient water for the crops – both the Mohenjo Daro and Harappa cities had a complex and sophisticated irrigation system.

However with the passage of time, other factors, many of them external began to influence the ancient people who inhabited these cities and that led to a collapse of their ascetic way of life and the emphasis changed to a more temporal or a more corporeal existence and this change triggered or perpetuated the collapse of the civilization.

The conscious mind began to play a more prominent role and in time usurped the role of the subconscious mind relegating it to furthest corners of the mind and material needs began to take precedence and come to the forefront. With each generation the reliance on the conscious mind increased and the use of the subconscious mind decreased until it came to the point that normal Hindus were not even aware of the twofold nature of the human mind and confined it to the purists and the ascetics.

The conscious mind as we know it is also called the infant mind or the reactive mind and these characteristics aptly describe the conscious mind.

The conscious mind is an infant not only in terms of age i.e. it only exists for the duration of a lifetime but it is also an infant in terms of its cravings. It is a very materialistic mind and when the needs of the senses are not satisfied or fulfilled in tends to display a range of emotions that vary from sadness to anger but rarely understands that there is a higher order that sometimes dictates or influences the outcome of things and one of those factors that come into play or part of that higher order is karma (the sum collective of all our actions from our past existence).

The conscious mind is easily disheartened and because of its unwillingness to accept and make the best of any given situation it easily succumbs to illnesses and a body that overly relies on the conscious mind will more often than not fall victim to some sickness or other and it tends to shorten one’s life. Therefore the conscious mind has to be curtailed and just like a child has to be told “no” to prevent any sort of harm from befalling the child; the impulses of the conscious mind have to be likewise restricted.

The conscious mind is also called the reactive mind because it reacts to situations often without giving the matter much thought and sometimes because of its impetuous nature it finds itself in a fix. Therefore in any given situation it is best to rein in the impulses of the conscious mind and to think the matter through before reacting.

The conscious mind is more concerned with temporal existence and while it does accept that there is a life after death it fails to explore it further because it is afraid of what it might uncover and it is afraid that if the body it belongs to spends more time exploring the other facets of existence, it might eventually be relegated to a secondary role and the subconscious mind may come to the forefront.

Copyright © 2017 by Dyarne Ward

The twofold nature of the mind

Previously we looked at past life regression and how it is used to help overcome some of the bodily aches, pains and niggles that we take for granted and we have also looked into the Hindu belief of the duality of existence i.e. the belief that the human body is divided into two component, the tangible component or the body which perishes with time and the intangible component or the soul which exists for the duration of time or for the duration of the universe.

It is now important to understand the twofold nature of the human mind and why we cannot or rather, are unable to access repressed memories or memories from a previous existence without some type or form of help or assistance like hypnosis, which as we have pointed out before can be dangerous or the more subtle practice of yoga which will eventually lead us to spiritual meditation.

The mind as we know it is divided into two components the conscious mind or the temporal or corporeal mind so called because it reacts to the needs of the five sense and the subconscious mind or the vast depository that stores all the information with regards to our past and present existence and according to some scholars also aids us with clairvoyant dreams or precognitive visions.

The conscious mind operates from the time we are born or we take on a new existence to the time we die or our soul leaves the body. It registers everything that we see or do while we are in the waking state and influences a majority of our decisions. Most of us live or operate under its influence.

While in the waking state the conscious mind tightly binds the subconscious mind, so much so that it is impossible for us to have access to the subconscious mind. In addition to that our own habits, for example excessive drinking or smoking, tampers with the chemical balance of the mind or sometimes alters it to the point that we become addicted to alcohol and cigarettes and this further impedes the workings of the subconscious mind.

We won’t be wrong in saying that when we are in the waking state the conscious mind supplants or supersedes the workings of the subconscious mind.

The only time that we can have access to the subconscious mind which has stored all the data from our past existence, regardless of how many lives we have taken, is when the conscious mind is asleep.

When a hypnotist puts his subject to sleep, like we see on the television or during stage shows, he or she is in reality putting the conscious mind to sleep so that he or she can have access to the subconscious mind and help cure the patient of any pain, niggles or illnesses he or she may have suffered as a result of any accident, injury or illness that occurred in a past existence.

However because the hypnotist can only put the conscious mind to sleep and has no control over the subconscious mind, what surfaces, for example an alternate personality that suddenly comes to life when the subject is under hypnosis or in other cases the hypnotist triggers a sudden illness that the subject succumbed to in a past life – there is no telling what could happen – the only option open to the hypnotist is to gather as much information as possible and somehow make sense of what’s happening.

However in most cases it is almost impossible to make sense of things, especially in instances of alternate personalities, despite the clarity of the memories that surface.

It is difficult, for a third party to have any form of control over another person’s subconscious mind and in those circumstances the only avenue open to the hypnotist is to wake the subject up and let the conscious mind reassert itself.

The hypnotist can forget about what transpired during the hypnosis session and choose not to tell the subject but the subconscious mind once it’s been released from the shackles that bind it will seek to resurface and will often do so in dreams or in flashes of images that sometimes appear out of nowhere and disappear just as quickly. Therefore most hypnotists will tell the subject what transpired during a hypnosis session to safe the subject from the trauma of trying to make sense of things when those memories suddenly resurface again.

Hence the safest option for anyone who wants to access their memories from a past life is to delve into spiritual meditation and gradually build the bridge between the conscious mind and the subconscious mind. There are no guarantees that it will work but it is a lot safer than hypnosis.

Copyright © 2017 by Dyarne Ward

Past life regression Hinduism

Past life regression or past life regression therapy is based on the ancient Hindu principle that advocates the duality of existence. The body as we know it is divided into two components, the temporal body or the physical body and the soul or the spiritual matter within the body. The former is driven by corporeal demands while the latter is driven by spiritual demands. The former remains in existence of a lifetime while the latter remains for the duration of all time or is eternal.

Past life regression therapy is based on the principle that once the physical body dies, the astral body or the soul migrates and occupies a new body and therefore it retains the memories of its past existence and according to the theory any unexplained pain, niggles or illnesses that we suffer in the present life can be attributed to the injuries we sustained or incurred in our past life and therefore by confronting those memories or by coming to terms with them we can do away with the pains, niggles and illnesses that we suffer in the present life. This is the most common reason why people resort to the therapy.

Before I go any further it is worth mentioning that an existing illness can exacerbate a new illness. Two illnesses can operate in tandem and a previous illness that is still operating can increase the severity of a new illness. Let’s look at an example. In the case of Heil v Rankin and another (2000) the plaintiff was a dog handler with the police force and in 1987 he was exposed to a serious crime which left him deeply scarred. In 1993, he was involved in another incident with the defendant which was minor compared to the incident that he was involved in, in 1987, but the injury he sustained as a result of the new incident was aggravated or exacerbated by the previous illness and as a result he was no longer able to continue with the police force.

While in the above instance the previous illness occurred in the safe lifetime, the illnesses and injuries that past life regression therapy aims to remedy are illnesses or injuries which occurred in a previous life. It is based on the notion that the soul upon migration to a new body, retains the memories of it past illnesses or injuries and those memories manifest as pains and niggles in the present body.

In order for a person who suffers from the past life illness or injury (the subject) to be cured of the effects of the illness or injury, the subject has to remember the past incident that resulted in the illness or the injury or be made to recollect the incident by taking a trip back in time.

The most common method of doing this, in western circles anyway, is through hypnosis. The reader however must be cautioned that hypnosis is not without its dangers. In Gates v Mckenna (1998) the defendant who was a hypnotist was conducting a show on stage and in order to exhibit his skills he asked for help from members of the audience. The plaintiff volunteered and as a result of being subjected or exposed to hypnosis became a schizophrenic.

The reason this happens and can happen again is because no two persons are alike and the moment a hypnotist starts navigating through a person’s memories there is no telling what he or she will uncover and there is no way to predict how the subject will react. The impact of bringing to light past memories that have been repressed by the passage of time can be too much for the subject to bear and as a result he or she may succumb to a new psychological or psychosomatic illness.

It is also possible to regress too far back in time and the subject may take on a new personality, entirely separate and distinct from the subject’s present personality like in the alternate personalities of Jensen Jacoby and Gretchen Gottlieb that suddenly appeared during hypnosis (we have looked at these cases in the past). Hence it is fair to surmise that hypnosis despite yielding some unexpected results is not without dangers.

So, is there a way to bring these past memories back safely? The answer in short is yes but it is slow and requires repeated and diligent work. The subject starts with yoga, a process which allows the subject to come to terms with both the physical aspect and the spiritual aspect of existence and then moves on to meditation. During the meditative process, the subject regresses slowly back in time and gradually explores the unexplored facets of the human mind that store all past and present memories.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability Cases II

In Grimes v Hawkins (2011) a young lady was invited by her friend, while her parents were away, to a party at her house. During the course of the party, the plaintiff used the swimming pool in the house. The plaintiff had used the pool before and was familiar with its depths. The plaintiff then decided to dive into the pool and because the depths of the pool were not sufficient the plaintiff’s head hit the bottom of the pool and as a result she suffered severe injuries to the spine. The plaintiff sued.

The court found for the defendant on the basis that the plaintiff had used the pool on previous occasions and was entirely familiar with its depths. Regardless of the fact that the plaintiff was a visitor that was invited, the question that was to be asked, in line with the dictum in the Calgarth 1927 was whether the pool was used for the purpose that it was intended? When someone is invited to use the facilities in the house, the invitation is extended on the basis that the facilities in question will be used in the way that they would ordinarily be used and not otherwise.

In Geary v JD Wetherspoon PLC (2011) the plaintiff, while on the defendant’ premises chose to slide down the bannister and as a result sustained serious injuries. The plaintiff sued. Applying the dictum in the Calgarth 1927 as per Scrutton L.J. – when a person is invited to use the staircase in the house they are not invited to slide down the banister. They are invited to use the staircase in the manner that it is normally used. This approach is sometimes called the common-sense approach. In this instance, the plaintiff (Geary v JD Wetherspoon PLC (2011)) was aware of the risk and chose to accept the risk and therefore the defendants were not liable.

Let’s go back momentarily to owners who keep Rottweilers and German Shepherds on their premises. They are fully aware of their pet’s temperament and in most instances, take more than adequate measures to ensure that the fencing around their house is secure.

In addition to that they also post warning signs to warn others that there a is a dog on the premises. Despite that there are some very strange people who lurk about and like nothing better than to meddle with the fences and poke their hand through the fences to aggravate the dog. Are the owners to be blamed if the dog bites their hand off? Hasn’t the stranger in this instance accepted the risk by his or her own volition?

In Moira Brown v Lakeland Ltd (2012) the plaintiff was injured when she slipped and fell while using a staircase at the defendants shopping center. There were no handrails in place and adequate signs were not posted to inform visitors to the shopping center that there was an alternate route that they could use. The plaintiff sued on the grounds that had there been a handrail or had adequate signs been posted, the plaintiff would not have been injured.

The court held that all stairs were a risk and it is up to the user to ensure that they take reasonable care and precaution when using the facilities that are provided in shopping centers and other premises that are open to the public. The plaintiff was unsuccessful.

In John Dawson v Ruth Page (2012) we look at the duty that is owed by an occupier of a premises to visitors who have implied permission to be on the premises.

The plaintiff was a courier who had to deliver a package to the defendant’s house. Because the house was being renovated it looked rather disorganized and there were building materials in the way, the type one would associate to ordinary renovation or refurbishing works, that prevented easy access to the house. The plaintiff who was unable to locate the defendant, under normal circumstances the courier is obliged to first locate the person the parcel is addressed to, entered the premises and left a package at a convenient spot. On the way out the plaintiff slipped on a wet plank and was injured. The plaintiff sued.

The court, applying the common-sense approach, decided that it was the plaintiff’s failure to exercise due care and caution that had led to the injury as opposed to the defendant’s negligence. Once the plaintiff realized that the plank was wet, in most cases and instances, it would be fairly obvious, the plaintiff should not have used it as a crossing.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability II

Lowery v Walker (1911) gives us an example of the type of duty that is owed to strangers and stranglers that make their way onto private poverty. The plaintiff used the defendant’s land as a short cut, the land was usually used as a short cut, and the defendant had taken no steps to prevent it from being used as such. The plaintiff while walking across the land was injured by the defendant’s horse. The defendant knew that the horse was dangerous but despite that had not taken any steps or measures to restrain the horse or have it secured. The plaintiff sued and was successful.

The situation is not too dissimilar to those who have guard dogs like Rottweilers and German Shepherds. Without doubt, these are some of the most loving dogs in the world but they have a tendency to be over protective and are best kept on land that is not open to public. Most owners of these dogs usually post signs to warn friends, visitors, strangers, and stranglers that there is a dog or dogs in the vicinity to prevent them from coming too close to the fence – these dogs are normally kept in an enclosed area.

On the same token strangers, stranglers, visitors, and trespassers also have a duty to ensure that they act in the appropriate manner. For example, if there is a sign posted on the fence saying “beware of dog” please do not try and put your hand on the fence or meddle with the fence because the chances are that you will get bitten. Owners train these dogs to react in the manner that they do for their own safety and protection.

There are also instances and occasions where people tend to aggravate the dog and if you do so and get your hand bitten off don’t blame the owner because no one in their right mind would aggravate a Rottweiler or a German Shepherd especially when there are signs posted all around that clearly say “beware of dog”.

Strangely enough there are some people who can’t walk past compounds that are protected by dogs without aggravating the animal and after that make a complain to the relevant authorities saying that the dog is too vicious. Vicious or otherwise in most instances the dog is just doing what it is trained to do.

The court elaborated on the duty that is owed by strangers, stranglers, trespassers, and visitors in the Calgarth 1927 – when a person is invited into a house to use the staircase they are not invited to slide down the banister. They are invited to use the staircase in the manner that it is normally used i.e. the duty that is owed by any occupier of land is one that is within reason.

In Haseldine v C. A. Daw & Son and Others (1941) the plaintiff was injured when the cylinder gland of a hydraulic lift in a block of flats broke. The lift was examined only the previous day by someone from the company that was contracted to maintain it and the lift was passed fit. The plaintiff sued the owner of the flats who was also the occupier and the courts held that the owner was not liable. In this instance, the maintenance of the lift was contracted to another company that was required to inspect the lift once a month. The accident was not caused by the negligence of the owner or the occupier but rather by the lack of skill exercised by the servicemen that were contracted to ensure that the lifts were in good working order.

In Tomlinson v Congleton B.C. (2004) the defendants had converted a sand quarry into a park that was open to visitors to frequent. The disused quarry included a lake and signs were posted in plain sight disallowing or prohibiting visitors from swimming in the lake, especially because these lakes are normally shallow and the sand below is loose and prone to give way, which is normally the case with pools that occur naturally in disused mines and quarries and these pools are a hazard to swimmers. Despite that some of the visitors did go for a swim or a wade in the shallow waters of the lake.

The plaintiff was a visitor who decided to go for a swim. He dived into the pool but because of the shallowness of the water or the lack of depth, he sustained severe injuries to the neck. The plaintiff sued.

The court held that the council was not liable. The risk was one that was perpetuated by the claimants own actions rather that a failure by the council to take reasonable care and precaution. S2(2) Occupiers Liability Act 1957 – “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”.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability Cases I

In Edward v Railway Executive (1952) the case was decided prior to the enactment of the Occupiers Liability Act 1957; a railway track was used by members of the public to cut across, as a short cut, and the council erected fences to prevent the use of the railway track as a short cut but the fences were repeatedly torn down and the matter was eventually brought before the court. The question that was to be decided upon was whether the council despite repeatedly erecting fences owed those who used the railway track as a short cut a duty of care? The court held that when there are repeated attempts to erect fences to prohibit members of the public from using the railway track as a short cut and those fences are repeatedly torn down, a duty of care did not arise.

In Wheat v Lacon (1966) the plaintiff and her family were staying in a hotel and while her husband was climbing down a particularly steep staircase, he fell down and hit his head on a beam and died as a result. During the trial, according to the evidence that was given, the staircase was narrower than usual and the lightbulb which normally lit the staircase did not work. In addition to that, the handrail was two steps short towards the end of the staircase which meant that the handrail would stop two steps before the end of the staircase and anyone holding on to the handrail would most likely fall especially if the staircase was not lit. The plaintiff sued.

To start with the court had to decide who the occupiers were. The premises was owned by one party but the day to day running of the hotel was in the hands of another party who were also the occupiers. The court held that there could be more than one occupier in a or to a premises.

The plaintiff had brought an action against the owners who though they retained sufficient control of the premises, the day to day affairs with regards or reference to running or operating the premises fell into the hands of the other party. Clearly the fixing of the lightbulb or rectifying defecting lighting fell into the hands of the second party and therefore the plaintiff’s action failed.

In Lewis v Six Continents (2005) the plaintiff fell through a glass window and brought an action against the owners for failing to have bars erected on the outside of the windows to prevent visitors from falling. The court denied the plaintiff’s claim. If the claim was allowed it would mean that bars would have to be placed outside all glass windows to prevent other claims due to similar accidents. The Occupiers Liability Act 1957 only required occupiers and owners of premises to take reasonable care and not anything beyond that.

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.

Because the plaintiff was a paying customer there was a contract between the plaintiff and the defendants and it was held that there was an implied warranty that the machine could be safely used for the purposes that it was intended for.

In Lisa Wardle v Scottish Borders Council (2011) the plaintiff was a 9-year-old girl who climbed on to the rafters of her school playground shelter and was injured when she fell. The court had to determine if a duty of care was owed and the nature of the duty of care.

It was decided that a duty of care was owed under s2(1) of the Occupiers Liability Act 1957 and that duty was similar to the duty of care that was owed in negligence and the question that was to be asked was whether a reasonable person would have acted in the way the defendant did or would have failed to act under the circumstances and if that act or failure to act had led to some type of injury to the plaintiff? The court found in favor of the plaintiff but unlike in other cases that involved children, decided that the plaintiff was contributorily negligent and the damages that were awarded were reduced by half.

Copyright © 2017 by Dyarne Ward

Karma Hinduism

Karma is a fundamental belief of the Hindu faith and basically it denotes the sum collective of all actions, both good and bad, that follows the soul into the next life. Hinduism is based on the notion that existence is dualistic in nature and that the human body is composed or comprises of two components the physical component i.e. the body per se and the spiritual component or the spiritual matter within the body which is commonly referred to as the soul. While the body exists for a limited time and comes to an end after having existed for a specific time, the soul is eternal and exists for all time.

The physical body comes into existence with birth and from then on it gets stronger with age as it grows from adolescence to youth and continues to gain physical strength with time until its faculties start to slow down and it loses the strength it has gained as it grows old and infirm before slipping into death. The body is then reduced to ashes or cremated and it remains only as a fleeting memory in the minds of those that were in some way or form attached to the body.

The same however cannot be said for the soul which remains the same from birth to death and upon death depending on the deeds and actions of the body it was encased in while it was alive it either attains salvation or liberation or migrates to another body to begin the journey anew.

According to some schools, the type of body that the soul attains after death depends on its deeds and actions when it was trapped or encased in the previous body. Souls that belonged to a body that had lived a good life, even if they do not attain salvation or liberation after death, acquire the body of someone who is born in a higher or a good station in life and are not subjected to the many miseries that often accompany human existence for example poverty, disease, sickness, and homelessness, to name some of the many problems that plague human existence today.

Souls that belong to a body that has led a wayward life and a body that has committed numerous sins normally attain the body of someone who is born into a lower station in life and are subjected to the many miseries of mortal existence. The general belief is that the new body will experience the sins the former body inflicted on others and upon realization of its mistakes, it will be liberated from a wretched existence and continue on the higher path until it is born in the body of someone who attains salvation and liberation by virtue of having lead a noble existence.

As far as the soul is concerned, birth and death is a continuous cycle and the soul passes from one state to another, repeating the process for as long as it takes or for as many times that is needed until such time that it attains the body of someone who desires to live a noble and virtuous existence and not be swayed by material pleasures or corporeal or temporal needs but rather someone whose existence is driven by spiritual needs and the desire to do so permeates his or her very existence.

Another way of looking at it is that in order for one to escape the birth and death cycle, all one has to do is to live a good life for the duration of a lifetime which in present terms translates to no more than a hundred years or so and upon death the soul will either attain salvation or liberation or attain the body of someone who is born in a higher station of existence.

Living a good or a meritorious life doesn’t always equate or translate to attaining salvation or liberation and even while living a praiseworthy existence, one can be subjected to the many pitfalls that result from temporal or corporeal needs and therefore the only surefire way of attaining salvation or liberation is to seek enlightenment.

Seeking enlightenment merely means renouncing all material existence and devoting one’s existence to seeking out the higher truths and it normally means leading the life of a monk or an ascetic.

Upon death those persons who have faithfully complied with the norms and rules that accompany an ascetic existence are liberated and gain the status of an enlightened being and may return to the world of the living to help others through difficult times or may be reunited with the source and continue to exist with the source for the duration of the universe.

Karma in short is simply the deeds that we acquire in the present life, good and bad, that follow us into the next life and determine the body that we will attain in the next life. Therefore, while one is alive it is in one’s best interest to accrue as many good deeds as possible and to avoid negative actions.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability I

Occupiers liability refers to the duty that is owed by those who occupy property through ownership or lease to visitors to their land or property. Despite the fact that owners legally own the land they must take adequate, relevant and appropriate steps to ensure that any visitor to their property, whether invited or otherwise, is not subjected to the risk of accident, injury or illness.

In Jolley v Sutton LBC (1998), for example, the council had left an abandoned boat on a piece of land that it owned with a notice stuck to it that warned others not to meddle with the boat and if the boat was unclaimed within 7 days it would be removed. The boat however was left abandoned for 2 years and in that time it had further deteriorated and posed a hazard to trespassers or anyone else who clambered on it or fiddled with it.

The boat was discovered by two 14-year-old boys who as boys normally do got carried away with it and tried to do it up. While they were trying to fix the boat, there was an accident and one of the boys suffered serious spinal injuries and was paralyzed as a result. The plaintiff sued under the Occupiers Liability Act 1957 and was successful.

It was reasonably foreseeable that if the boat was not disposed of in the appropriate manner, someone sometime was likely to stumble across it and there was a real likelihood that the person(s) could sustain some form of harm or injury as a result.

In Ward v Tesco Stores Ltd (1976) the plaintiff was walking down the aisle of a Tesco store shopping when she stepped on some spilled yogurt and subsequently slipped and fell. The plaintiff was injured as a result of the accident and brought an action against Tesco for negligence. The court held that Tesco owed its customers a duty of care and it had breached that duty by failing to ensure that the floors were kept clean at all times. The plaintiff’s injury was the result of stepping on the spilled yogurt or the plaintiff would not have been injured but for the spilled yogurt and thus the defendant was held to be liable.

The plaintiff despite having brought an action in negligence could have also brought a successful action under the Occupiers Liability Act 1957. The act was enacted primarily “to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.” (Section I(I)).

S2 of the act elaborates on the natures of the duty that is owed. S2(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

The Occupiers Liability Act 1984 further reinforces the principles that were laid down in the 1957 act. S1(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine –

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

In Gwilliam v West Hertfordshire Hospital NHS Trust (2002) the plaintiff, a 63 year old lady, was injured while she attended a summer fair hosted by the defendants. During the fair the plaintiff had participated in some of the activities and as a result of the defective equipment that was provided, she sustained injuries. The plaintiff sued. Under normal circumstances the matter would be covered by public liability insurance but in this instance the insurance policy of the contractors who provided the equipment had expired 4 days prior to the fair, and the contractors had failed to renew it.

The court held that under the Occupiers Liability Act 1957 there was a duty that was imposed on organizers to ensure that the contractors they employed had suitable insurance coverage and the court found that the defendants had been negligent by failing to ensure that their contractors had suitable insurance coverage. The plaintiff was successful.

Copyright © 2017 by Dyarne Ward