OCCUPIER’S LIABILITY
CONTENT
1.0 INTRODUCTION
2.0 OBJECTIVES
3.0 MAIN CONTENT
4.0 CONCLUSION
5.0 SUMMARY
6.0 TUTOR MARKED ASSIGNMENT
7.0 REFERENCES/FURTHER READINGS
INTRODUCTION
OBJECTIVES
MAIN CONTENT
LAW REFORM TORTS LAW OF 1965
Section 7, 8, and 9 of the Law Reform (Torts) applies only to Lagos. With regard to the rest to the country there is no law. In Rivers State, a law similar to this is in the process of being enacted. In other states of the Federation, it is till the common law that governs the liability of the occupier.
Section 7(1) of that Law, provides that as far as Lagos is concerned, the provision of the law has replaced the common law with regard to the occupiers liability to visitors. The statutory provision does not apply to trespassers and also with regards to the state and condition of the land and the activities carried out on the land as well as things omitted to be done on the land. It is possible for the occupier to restrict, extend or modify his duty towards visitors that come upon his land. It is also possible for him to place volenti non fit injuria against the visitor where the visitor himself has accented to the injury or consent.
Section 8 contains the nature of the duty owned by the occupier to the visitor. It is regarded or refers to as the common duty of care and this common duty is the duty to ensure a visitor who comes upon the land is reasonably save.
Section 8 (3) (b) also requires an addition to the common duty of care owed to all visitors. An occupier must be prepared for children to be less careful than adult.
Section 8(3)(b) relates to independent contractors. An independent contractor who is employed by the occupier to work on his land is expected to appreciate such danger that arises from his calling. An occupier is not supposed to warn an independent contractor of such dangers. However, if there is a hidden danger like an exposed wire, known to the occupier he is expected to warn the contractors.
In Roles v Nathern (2963) 2 All ER 908, two chimmy sweepers were employed by the occupier to sweep out his chimmy. They went into the boiler to clean it while it was being fired by coal. The two of them were choked to death form the carbon-monoxide which was emitted into the boiler. The occupier was sued in respect of damages for their death. It was held that the occupier was not liable because the normal danger arising form the calling of those sweepers and it was not the occupiers that should warn them but they should know and guard against it.
It should be noted that there can be two occupiers at the same time. For example, a landlord lends out his premises to a tenant but reserves sufficient right as to be regarded as having control over the premises. If a visitor is injured both the landlord and the tenant may be sued jointly and severely.
An occupier is a person in control of premises or in control of something on land. A binding machinery may be on land and the person who operates the machinery is said to be in control of such machinery.
As Lord Denny said in Wheat v Leoen (1966) A.C. 552, if a person has any degree of control of premises he is an occupier. See also Fisher v Chit (1965) 1 WLR 393 or 2 All ER 601.
As far as the dangers protected by the action are concerned, the dangers arising from the state and condition of the land are covered by the Act and also danger arising form activities going on in the land. This includes Machinery and other potential dangers contemplated by the Act against which the visitors enjoy protection.
Duty Owed to Visitors
The warning must be sufficient to inform the visitors. As far as Children are concerned the occupier must ensure a high standard of care enough to protect the children from injury. In Glasgow Corporation v Taylor (1922) 1 AC 44, there was a botanical garden which was open to visitor to view. In this garden was a tree that had fruits that looked like cherry; a boy of 7 years who was a visitor in the botanical garden plucked the fruit, ate it and died. His next of kin sued the corporation. The Corporation was held liable. They argued that the boy was a trespasser who was allowed to admire the garden but not to pick fruit. The fruit was in fact poisonous and nothing was done to prevent children from moving near that tree.
It is stated that where a visitor gets injured despute the warning and with full knowledge of the danger, the occupier is not automatically exonerated. In this situation, court will still question whether, despite the warning and with full appreciation of the danger, the visitor reasonably incurred the injury. The duty of the occupier towards a visitor extends to the property of visitors.
OCCUPIERS LIABILITY
The relationship between the occupier and trespasser is still governed by common Law. Tresspassers are persons who force themselves into a relationship with the occupier. A trespasser is a person whose presence is unknown to the occupier and if it is known, it will be objected to. A trespasser hardly enjoys any protection at Common Law. The only duty the occupier owes then is not to inflict injury on them or to act in reckless disregard of the safety of the trespasser.
In Addy v Dumbreche (1929) AC 358, a 4 year old was crushed by a trashing machine. manipulated by the defendant agent. The question was whether the injury was inflicted intentionally or otherwise. It was held that the injury was not inflicted intentionally and there was no liability.
While the occupier has the right to protect his property from a trespasser, he is not allowed to create restributory danger for that purpose like setting traps for the purpose of injuring trespasser.
In Bird v Halbrook, an occupier planted spring guns in order to protect his flower in his garden. A child who pursued a fowl into the garden was injured and he was held liable. It is difficult when a trespasser is aware of the danger and gets injured, an occupier will not be liable. Several attempts to bring about improvement in the position of the trespasser to that of the occupier failed. They tried to use the principle in Donoghue v Stephenson. The House of Lords rejected Lord Denning’s position. It was not until the case in Brighton v British Rly Coy (1972) AC.
The occupier is not supposed to check his compound to make sure there is no trespasser. The case is different when dangerous activities are carried out in the premises. In that case, there is a higher duty of care.
The occupier is to give notice only of dangers he knows about or which a reasonable man ought to know to his trespasser.
The trespasser is to take the occupier as he finds him. An occupier who is not well to do is not under a duty to put high fence – warning will be enough. But there are exceptions as was laid down in Herringtons care covering children. There is still the distinction between children which is governed by the Law Reform (Torts) and the trespassing children which is governed by the common law. This rule is mainly for people who use their premises for extra ordinary purpose.
Palnmebt V MC Guines (1972) 2 QB 559. The def were demolishing a warehouse positioned near a public park for children and adult they set the building on fire and set 3 men to guard the premises. A child of 5 years approached the fire when the 3 men were absent from their post and while playing he fell into the fine and was badly burnt. The child had been wonderer of the premises before. In an action against the Co (df) they were held liable for the negligence of the 3 men who absconded their post. The court took according of the proximity of the park, the time at which the child was injured and also that the def should have known if about the attractiveness of fire by children. They were held liable for the injury sustained by the child.
Occupiers liability to children.
The law maintained a distinction between children visitors and trespassers. Child trespassers are owned the duty of common humanity. A child visitor is one who is in the premises by invitation, license or permission such a child is owned a common duty of care which recognizes that the characteristics of children should be taken into account when deciding the liability of occupier, reason being that children have a strong disposition onstery according to Lord Haminton in Lathern v R Johnson (1913) 1 KB 398 at 415 he said “The occupier must appreciate that in the case of infants there are moral as well a physical traps and accordingly there is a duty towards infants not to dig pit falls for their or land them into templation” this means that the occupier should not leave unattended situations or objects which may constitute an ailment to the child.
Glasgon Coprp v Taylor (Supra)
In the case of Goldman v Harrlyn (1943) KB 664. A boy who was on a threshing machine and was crushed when the workers started the machine. The court held that the df had left a dangerous machine in the land without taken precaution against children. Occupier were not be liable where there is no allurement or dangerous objects on the land. Latern v R. Johnson. There was a heap of stone on the occupier’s premises. The kind was playing on the heaps when he was injured. In an action against the occupier held: The stones were not allurement neither were they dangerous, so the occupier will not be liable for children playing in his premises.
It is the court that decide whether a given object is an allurement. An allurement may seems to be not where it is reasonably guarded in order to prevent access of children. Similarly where there is adequate warning that is even obvious to a child. It was however said obiter that unguarded water will artificial or nature can never constitute an allurement. (No conclusive decision on this matter) Little v Torks Country Council (1934) 2 KB 101. An occupier was carrying out construction in his premises and left a heap of sand in his premises. A 7 year old boy was able to gain access through the sand to the well as he tried to balance on the well to demonstrate to his friends how he fly, he fell and got injured. In an action the court held that the heap of sand were not constitute an allurement.
With regard to very young children it appears from the Act tht in deciding the liability of the occupier all the circumstances of thee case must be taken into consideration or account. This evidently includes what is expected from the parent of such very young children as they ought to monitor where the children goes to or do. See Plubbs v Rochuster Corp (1955) 1 QB 450 it was indicated that with respect to very young children the occupier is not expected to make his premises as safe as nursery and that parent has a responsibility to ensure that places where they allow children to go are reasonable foreseeable.
CONCLUSION
There are three main difences are available in an action for negligence
- Contributory Negligence
- Invitable Accident and
- Violenti non fit injuria
SUMMARY
In this unit we discussed the three main defences to the action of negligence namely volenti non fit injuria, inevitable accident and contributory negligence.
TUTOR MARKED ASSIGNMENT
- What are the defences available in an action for negligence
- What are the conditions for establishing the plea of Res Ipsa
7.0 REFERENCES/FURTREHT READING
- Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishment (1998),
- Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
- John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
- Street: The Law of Torts Sweet & Maxwell (1977), London
- KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
The Criminal Procedure of the Northern States of Nigeria.