OCCUPIER’S LIABILITY AT COMMON LAW
At common law the duties of an occupier were cast in a
descending scale to four different kinds of persons. For example:
a)
The highest duty of care was owed by the occupier to
one who entered in pursuance of a contract with him e.g. a guest in a
hotel. In that case there was an implied
warranty that the premises were as safe as reasonable care and skill could make
them.
b)
A lower duty was owed to the invitee i.e. a person who
without any contract entered on business of interest both to himself and the
occupier e.g. a customer coming into a shop to view the wares he was entitled
to expect that the occupier should prevent damage from unusual danger of which
knew or ought to have know.
c)
Lower still was the duty of the licensee i.e. a person
who entered with the occupiers express or implied permission but without any
community of interest with the occupier; the occupiers duty towards him was to
warn him of any concealed danger or trap of which he actually knew.
d)
Finally, there was the trespasser to whom there was
owed only a duty to abstain from deliberate or reckless injury.
Occupiers liability deals with the liability of an
occupier of premises and extends to immovable property as open land house,
railway stations and bridges as well as movable structures like ships, gangways
or even vehicles although lawyers prefer
to treat injury in the latter as falling
with common law negligence.
Under common law lawful visitors who did not fall under
the above classifications of contractual entrants, invitees or licensees were
not clearly covered and accidents arising from the premises and affecting such
person were commonly governed by the general law of negligence.
The position of the common law was thought to be
unsatisfactory. As lord Denning put it
in Slatter v. Clay Cross Co. Ltd
“If a landowner is driving his car down his
private drive and meets someone lawfully walking upon it then his is under a
duty to take reasonable care so as not to injure the walker; and his duty is
the same no matter whether it is his gardener coming up with his plants, a
tradesman delivering his goods, a friend coming to tea, or a flag seller seeking
a charitable gift”
The law was thus referred to the law reform committee in
1952 as a result of whose report the Occupier’s Liability Act 1957 was
passed.
The 1952 Act abolished the common law distinction between
invitees, licensees and the substitution for it was a single duty of care owed
by the occupier to his visitors. The Act treats contractual entrants as a
separate category but less significantly than at common law.
The position of the trespasser remained the same under the
1952 Occupier’s Liability Act but was subsequently changed by the Occupiers’ Liability Act 1984.
As before the occupier duties under the Act apply not only
to land and buildings but also to fixed and movable structures and they govern
his liability in respect of damage to property as well as injury to the person.
The duty under the Act is imposed upon the occupier. The word ‘occupier’ denotes a person who has
a sufficient degree of control over premises to put him under a duty of care
toward those who come lawfully upon the premises.
An owner in possession is no doubt an occupier, but an
owner who has demised the premises to another and parted with possession is
not.
An absentee owner may ‘occupy’ his premises through his servant
and thus remain subject to the duty and he may also be subject to it though he
was contracted to allow a third party to have the use of the premises.
There may be more than one “occupier’ of the same
structure or part of the structure.
A visitor is generally a person to whom the occupier has
given express or implied permission to enter the premises.
The Act extends the concept of a visitor to include
persons who enter the premises for any purpose in the exercise of a right
conferred by law for they are to be treated as permitted by the occupier to be
there for that purpose, whether they in fact have his permission or not. This
would include a fireman attending a fire or a policeman executing a search
warrant.
Implied permission – this is a question to be decided on
the facts of each case and the burden of proving an implied permission rests upon the person who claims that it existed.
Any person who enters
the occupier’s premises for the purpose of communicating with him will
be treated as having the occupier’s tacit permission unless he knows or ought
to have known that he has been forbidden to enter e.g. by notice ‘no hawkers’
The occupier may of course withdraw this implied license
by refusing to speak or deal with the entrant but if he does so the entrant has
a reasonable time in which to leave the premises before he becomes a
trespasser.
The duty owed to a visitor does not extend to anyone who
is injured by going where he is expressly
or impliedly warned by the
occupier not to go as where a
tradesman’s boy deliberately chooses to go into a pitch dark part of the premises not included in the
invitation and falls downstairs there (Lewis
v Ronald).
Further the duty does not protect a visitor who goes to a
part of the premises where no one would reasonably expect him to go.
A person may equally exceed his license by staying on
premises after the occupier’ permission has expired but the limitation time
must be clearly brought to his attention.
“The common duty of care requires that the occupier must be prepared for
children to be less careful than adults but the special characteristics of
children are relevant also to the question of whether they enjoy the statutes
of visitors.
In Glasgous
Corporation v. Tayler it was alleged that a child aged seven had died from
eating poisonous berried which he had picked from a shrub in some garden under
the control of the corporation.
The berries looked like cherries or large blackcurrants
and were of a very tempting appearance to children. It was held that these facts discussed a good
cause of action.
Certainly the child had
no right to take the berries or even to approach the bush and an adult
doing the same thing might as well have become a trespasser but since the
object was an ‘allurement’ the fact of
its being let there constituted a breach of the occupiers duty.
The common duty of
care owed to all visitors as well as an entrant on contract with implied terms
is defined as a duty 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 purpose for permitted to be there.
The Act gives some guidance in applying the common duty of
care:
i.
An occupier must prepared for children to be less
careful than adults; and
ii.
An occupier may expect that a person in the exercise of
his calling will appreciate and guard against any special risks ordinarily
incident to it, so far as the occupier leaves him free to do so.
As to (i) it will be reasonable for the occupier to expect
children on his premises unaccompanied but the law is still as was stated
before the Act by Delvin J in Phipps v.
Rochesther Corporation, namely
that some of the circumstances which be taken into account in measuring the
occupiers obligation is the degree of care for their children’s safety which
the occupier may assume will be exercised by the parents.
In this case; the plaintiff a boy aged five was with his
sister aged seven and they walked across a large opening, which formed part of
a housing estate being developed by the defendants. The defendants had dug a
long deep trench the middle of the open space a danger, which was quite obvious
to an adult. The plaintiff fell in and
broke his leg.
Held: A prudent parent would not have allowed two
small children to go alone on the open space in question or at least he would
have satisfied himself that the place held no danger for the children. The defendants were thus not liable.
The judgment of Delvin J squarely placed the primary
responsibility for the safety of small children upon their parents, he started:
“It is their duty to see that such children
are not allowed to wander about by themselves or at least to satisfy themselves
that the places to which they do allow their children to go unaccompanied are
safe for them to go. It would not be
socially desirable if parents were as a matter of course able to shelf the
burden of walking after their children from their own shoulders to those who
happen to have accessible bits of land.”
The occupier will have discharged his duty if the place is
reasonably safe for a child who is accompanied by the sort of guardian whom the
occupier is in all the circumstances entitled to expect him to have with him.
As to (ii) above the general rule is that where an
occupier employs an independent contractor to do work, be it of cleaning or
repairing on his premises the contractor
must satisfy himself as to the safety or condition of that part of the premises
on which he is to work
In Roles v. Nathan (1963)
two chimney sweeps were killed by carbon monoxide gas while attempting to seal
up a sweep hole in the chimney of a coke-fired boiler, the boiler being alight
at the time.
Held: The occupier was not liable for their deaths.
As per Lord Denning M. R.
“when a house holder calls a specialist to
deal defective installation on his promises he can reasonably expect the
specialist to appreciate and guard against the danger arising from the defect.”
SPECIFIC ASPECT AFFECTING OCCUPIER’S LIABILITY
a) Warning
In most cases a warning of the danger will be sufficient
to enable the visitor to be reasonably safe and so amount to a discharge by the
occupier by duty of care but, if for some reason the warning is not sufficient
then the occupier remains liable.
b) Independent
character
Where damage is caused to a visitor by a danger due to the
faulty execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, the occupier is not liable if
in all the circumstances if he had acted reasonably in entrusting the work to
an independent contractor and had taken such steps as he reasonably ought to in
order to satisfy himself that the contractor was competent and that the work
had been properly done.
In Haseldine v Daw (1941) the plaintiff was going to visit a
tenant in a block of flats belonging to the defendant and was injured when the
lift fell to the bottom of its shaft as a result of negligence of the firm of
engineers employed by the defendant to repair the lift.
Held: That the
defendant having employed a competent firm of engineers to make periodical
inspections of the lift to adjust it and to report on it had discharged the
duty owed to the plaintiff whether the plaintiff was an invitee or a licensee.
An occupier must take reasonable steps to satisfy himself
that the contractor he employs is competent and if the character of the work
permits, he must take similar steps to see that the work has been properly
done.
Where the technical nature of the work to be done will
require the occupier to employ an independent contractor, he will be negligent
if he attempts to do it himself.
Liability to trespass
An earlier stated the original common law rule that the
occupier was only liable to a trespasser in respect of some willful act “done
with deliberate harm or at least some act done with reckless disregard of the
presence of the trespasser” (Rober Addie
& Sons Ltd v Dumbreck (1929) remained unaffected by the occupiers liability
act 1957.
The law underwent substantial alteration and development
by the House of Lords in British Railways
Board v. Herrrington
As a result of this case an occupier owed the trespasser a
duty of common humanity, which generally speaking was lower than the common
duty of care but substantially higher than the original duty. Herrington’s
case was applied by the courts of appeal on a number of occasions without
undue difficulty.
The duty owed to a trespasser was eventually clarified by
the Occupiers’ Liability Act, 1984.
Section 1(3) of the act provided that a duty is owed to the trespasser
if;
a)
The occupier is aware of the danger or has reasonable
grounds to believe that it exists.
b)
He knows or has reasonable grounds to believe that the
trespasser is in the vicinity of the danger concerned or that he may come into
the vicinity of the danger and
c)
The risk is one against which in all the circumstances
of the case he may reasonably be expected to offer the trespasser some
protection.
The duty is to take such care as is reasonable in all the
circumstances to see that the entrant does not suffer injury on the premises by
reason of the danger concerned and it may in appropriate circumstances be
discharged by taking such steps as are reasonable to give warning of the danger
concerned or to discourage persons from incurring the risk.
The Kenyan law on occupier’s liability is governed by The Occupiers Act, Cap, which was enacted in 1963 and
revised in 1980. The provisions relate
to the occupiers’ duty to visitors and entrants on contract.
The Act is silent as regards duty to trespassers and does
not incorporate the amendments brought about by the 1984 English Version of the
Act. It would thus appear that the
Kenyan position as regards liability to trespass is the common law position.