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QUESTION
University: Mzumbe University (Mbeya campus)
Programme: Bachelor of laws (LLb)
Year: 2
Do you have a question with an answer? click here to send us we will review and publish it immediately.
Email: legusc1@gmail.com
QUESTION
It has been argued that in some circumstances an occupier is exempted from liability. Explain such circumstances with relevant authorities
In answering this question we shall consider few tips which are:
INTRODUCTION
- Occupiers
- Occupiers liability
- premises
Historical background of occupier’s liability
General Principal of occupier’s liability
Circumstances where the occupier will be liable to
- children’s
- visitors
- Independent contactor
- Trespassers
- Landlord liability
- The circumstances where the occupiers will be exempted from liability according to the groups above
- Defenses of the occupier’s liability
INTRODUCTION
With regard to the requirement of the questions, it needs us to show the circumstances where the occupier will be exempted from liability, in due course of attempting this question the following shall be included, definition of the key terms which are Occupiers, Occupiers liability, premise, Historical background of occupier’s liability, General Principal of occupier’s liability, liability of the occupier on, Visitors, children’s, Independent contractor and to trespassers, thereafter, The circumstances where the occupiers will be exempted from liability according to the mentioned groups, Defenses of the occupier’s liability, Remedies of the occupier’s liability, then comments, conclusion and bibliography shall mark the end of this question
MAINBODY
Occupier
An occupier is the person who has some degree of control associated with and arising from his presence in and use of the premises. Also it denotes a person who has sufficient degree of control over premises to put him under a duty of care towards those who come lawful upon the premises and sometimes the trespassers. In the case of CLLIER v ANGLIAN WATER AUTHORITY(1983) TIMES, 26TH MARCH (CA) where the Court of Appeal held that the local authority and water authority were occupiers, the later because, by maintaining promenade as part of their statutory duty they exercised control over it. Other forms of occupiers include, a local authority having acquired a house by compulsory purchase occupying it even before its staff enters it, a man running a restaurant in the club under license from the club.
Occupier’s liability
Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care that those who occupy (through ownership or lease) real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. In English law, occupiers' liability towards visitors is regulated in Occupiers' Liability Act 1957. In addition, occupiers' liability to trespassers is provided under Occupiers' Liability Act 1984. Although the law largely codified the earlier common law.
Premise
These refer to the structure like cars, ships, houses, buildings, land itself, aero plane, premises include even lifts, and a ladder as provided for in the case of WHEEL v COPAS (1981) which are under control of an occupier, improper maintenance and failure to keep premises in high safety shall render the person who takes control of them liable for any injury sustained by the people who visits his premise.
Historical background
In early times, the liability to the occupier were governed by common law rules, under this the occupiers liability varies depending on the type of the entrants visiting his premises. The highest degree people came to his land by virtue of contract, the invitee who comes without contract, the lower duty was owed to the licensee, while on the side of the trespassers, the occupiers obligation was merely to refrain from deliberately or recklessly causing them injury.
Common law rules complexities because the context of the duty varies according to the manner in which the claimant injuries were sustained. Distinction was drawn between injuries sustained by the virtue of something done on the defendant premises and injuries caused merely by the dangerous state of the premise. Due to this, THE OCCUPIERS LIABILITY ACT was enacted to eliminate confusion that crowded common law rule on liability to entrants on the premises. OCCUPIERS LIABILITY ACT of 1957eliminated the distinction between invitee and licensee which was under common law rule and generalize them into one group of the “lawful visitors” however this Act just like common law rule have a lacuna on the liability of the occupier’s to the trespasser, following this legal silence, OCCUPIER’S LIABILITY ACT of 1984 was enacted which cover the liability of the occupier towards trespassers.
In Tanzania, the law governing occupier’s liability is OCCUPIERS LIABILIY ACT OF 1968 which was revised in 2002; however this statute is Para material to the OCCUPIER’S LIABILITY ACT of 1957 of England. This being the case law developed by court in England interpreting some provision of that Act, will highly pursued court in Tanzania when making decision on the same provisions. The application of the occupier’s liability principle in Tanzania can be seen in the case of MICHAELMWAMIKO v ANGETILE MWANJELA CIVIL CASE NO.7 OF 1991 (HC) DAR ES SALAAM
where the landlord was held to be liable for his failure to repair the premises out of which course death to the tenant’s wife and his mother due to the defective toilet.
General principle of occupier’s liability
An occupier of the premise owes an obligation to the persons who enter those premises or structure in respect of their personal safety and the safety of their property. An occupier has to observe “common duty of care” as provided for under section 3 (1) of OCCUPIERS LIABILITY ACT of 1968, which means that the occupier has to take reasonable care and ensure that the visitor are reasonable safe in using the premises in accordance to the purpose they have been permitted or invited to. The common duty may be extended, excluded, restricted, and modified depending on the agreement between the parties. The standard of care an occupier is expected to meet is the standard of "a reasonable occupier", no different from the usual common law negligence standard of care.
Liability to the children’s
This is provided for under section 3 (3) (b) of OCCUPIERS LIABILITY ACT of 1968, where an occupier must take reasonable care to see that children’s of whose presence he knows or ought to know and who are too young to appreciate a danger of some attractive objects traps of allurements under his control and within his knowledge, are protected against injury from that danger either by warning which is intelligible to them or by some other means. OCCUPIERS LIABILITY ACT under section 3(3) (a) requires occupier to be more keen with children as their less careful. The kids may be allured object from which the adult may avoid. What may be obvious to an adult may be a trap to a child; this was stated in the case of GLASSGOW CO v TAYLOR 1922
There is two different views on the liability of an occupier towards the children’s, where by there are two views which are humanitarian view and Dracon view. On the side of humanitarian view, they argue that, children have no knowledge and must be guided by the occupier on whose ground is allowed or tempted to enter. This position may be seen in the case of SIOUR CITY PACIFIC RLY CO v STOUT (1902) LR EX 413 where the company was held liable to pay compensations to the parents of the child despite the fact that, the children trespassed by himself.
On the side of Dracon view, they argue that, the child must trespass at his own risk and if he is so young to appreciate what it is doing, it is for its parent to protect it and not the occupier. This position can be well illustrated in the case of MANGAN V ATTERTON (1866) LR PEX 239 where it was stated that, if the defendants machine was very delicate one, the child’s parents should be asked to pay heavy damage to the owners of the machine despite the fact that were crushed by the machine.
In general, the occupiers must take extraordinary care towards the children’s. This can be proved by the case of COOKE V MIDSLAND G.W RLY OF IRELAND (1909) AC 229) where by the defendant were held liable for injuries suffered by the child when it was playing with the turntable which was said to be dangerous to a children. Also in the case of GLASGOW CORPORATION v TAYLOR (supra) where a child aged 7 years died by eating some poisonous berries which he had picked from a shrub in a public garden, the defendants were HELD to be seriously liable for failure to take care of the child.
Circumstances where the occupier will be exonerated from children’s liability
- The occupier of the premise may not be liable when a child is a trespasser;
Also, if there is a temptation to trespass, the occupier will be liable for the injuries suffered by the child. This can be seen in the case of JEWSON v, GATTI (1885) 1 TLR 635 where a child was attracted by the painting, it leaned against a bar of a fence to watch the painting; it falls into the cellar and was injured. The defendants were hold as they didn’t take care to obstruct the kids from being attracted to trespass, as there was inadequate fence
No liability where there is no allurement in the occupier’s premises
Where the occupier’s premise does not have any allurement, the occupier will not be liable under any injury suffered by the child. In the case of JOHNSON v NEPHEW LTD (1913) 1 KB 398 where the child was injured while playing on a heap of the stone, he was held to have no remedy as there was no any allurement on the side of the defendant.
No liability where there in trap in the occupiers premises
The occupier will also not be liable where there is no trap in his/her premise, this can be proved in the case of LIDDLE v YORKESHIRE (1934)2 KB 101 where the child aged 7. who had beer previously warned off, climbed up the heap of soil and sustained injuries, it was held that, the child was disentitled from recovering damages as there was no trap in the premise of the defendants.
However where the occupier puts in its land dangerous object which attracts children, he will be liable. In the case of BCKLAND v GULFLORD GAS LIGHT CO(supra)the defendant were held liable for having placed dangerous line electric wires of a tree which was held to be an attraction to children as a result a girl of 3 years was electrocuted, the defendant was held to be liable.
The occupier will not be liable where he puts warning in his premises.
Also, where the occupier had warned the children’s from playing around his premise, he may not be liable for any injuries sustained by the child, this was in the case of EDWARDS V RAILWAY EXECUTIVE (1952) 2 ALLWE 430 where a rail company was held not liable to a child who had trespassed onto the railway line through a fence which had been kept in good repair, and the authorities had given repeated warnings against children entering the lines
However, when the rail is built containing objects which attract children’s to trespass, they will still be liable for any injuries sustained by the children, this was discussed in the case of GOUGH v NATIONAL COAL BOARD (1952) 1 QB 141 in this case unguarded slow-moving truck in colliery train way owned by the defendant was held to be an allurement and attracted the kids to trespass, hence the defendant were held liable.
The occupier will not be liable if the injury is caused by the third-party
This circumstance can be well illustrated in the case of RICH v LONDON COUNTLY COUNCIL (1953) 2 ALL ER 376) in this case the school were hold not liable for injury caused to a boy at school by another boy. The judge had this to say “the duty of the defendant to the boys was to take such care to them as a careful parent would exercise in similar circumstances and their supervision of the boy has been held to be adequate and therefore there were not liable to the plaintiff”
But if the school is negligence still they will be held liable as it was in the case of BARNES v HAMPSHIRE COUNTY COUNCIL (1969) ALL ER 746 HL where in this case the House of Lords held that, the premature release of five years from school constituted negligence and damage were awarded to the infant girl. The time for leaving the school was 3:30 pm and the parent were expected to come only by that time, to take the children at 3:25 pm as a result the kids crossed the public highway unattended and suffered damage, the plaintiff was knocked by the car, the defendant was held liable.
Also, an occupier may reasonably expect that his child visitors be accompanied by their parents or other guardians, who will look after them. Therefore, it had been held that the occupier will have discharged his duty toward a child if he had made the premises reasonably safe for the child accompanied by the kind of a guardian that he can be expected to the accompanied by in the circumstances. This was stated in the case of PHIPPS V. ROCHESTER CORPORATION (1955] 1 QB 450 [4]
Liability of the occupier to Independent Contractor
The occupier has also liability towards the independent contractor. At common rules, the position was in the case of THOMAS V CLAMING 1953)ALL ER 11, where it stated that “an inviter duty to invite is personal, it can not be discharged merely by intrusting its performance to an independent contractor however competent he appears to be and however technical the nature of the work which he is employed to do.” The position of law in Tanzania is found under section 3(4)(b) of OCCUPIER LIABILITY ACT as far as independent contractor is concerned the law requires that the occupier should exercise reasonable supervision to his independent contractor.
Circumstances where the occupier can be exonerate from liability under this category.
Where the damage is caused by the negligent act of the independent contractor
The occupier will avoid liability for loss or injuries suffered by his visitors, when the cause of damage is the negligence of the independent contractor hired by the occupier, this is provided for under section 2 (4) of OCCUPIERS LIABILITY ACT of 1957. This is sensible because a reputable contractor will, in any case, be covered by his own insurance, and so the claimant will still be able to recover compensation from the independent contractor and not the occupier.
Where the occupier had hired the competent contractor
Where the occupier has hires a competent contractor to construct his premise, he will be not liable as he had taken steps to ensure the safety of his visitor, but if the occupier will fail to hire a competent contractor, he will still be liable, as it was in the case of FERGUSON v WELSH (1987) where demolition contractors hired by the local authority employed the claimant. When he was injured as a result of their unsafe working system, the local authority was liable.
Where the occupier had entrusted the work to the independent contractor
This depends on the nature of the work, in the large scale, complex projects such as the construction of large building, it may involve employing an architect to supervise the work, in some jobs the occupancy are solely relying on the independent contractor since there are not competent on the work. In the HASELDINE v DAW & SON LTD here, the occupier was not liable for negligent repair of a lift, as it was a highly specialist activity from which the occupier solely depends of the independent contractor.
If the occupier took measures to reasonably supervise the work
If the occupier has taken reasonable care to supervise the construction, repair, or maintenance of the premise by an independent contractor, he will not be liable for injury suffered. In WOODWARD v. THE MAYOR OF HASTINGSthe defendant were not held liable for the injuries by his visitors, as was being very keen in supervision of the construction of his premises. However, if the occupier has not supervised the construction of his premise, he will still be liable for the injuries sustained by his visitor. This can be seen in the case of HESELDINE v DAW in which the occupier were held liable for failing to take reasonable steps to check if the work had been done properly. Because the nature of the work was such that could be easily to be checked
Liability of the occupier to the visitors
Section 1(2) of the OCCUPIERS' LIABILITY ACT 1957 defines “visitors” as persons to whom the occupier gives an invitation or permission to enter or use the premises. In other words, visitors are persons who have the express or implied permission of the occupier to be on the premises. A visitor who exceeds the occupier's permission, e.g. by going to the part of the premises where he was told by the occupier not to go, or by outstaying his leave, will become a trespasser and will fall outside the sphere of application of the Act. He will then be in the sphere of application of the Occupiers' Liability Act 1984, with lower standards of protection.
Section 3(2)(4) of OCCUPIERS LIABILITY ACT (supra) provide for the common duty of care that is the occupier must take such care as in all circumstances to see that, the visitors will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupiers to be there . Under section 2(3) of the OCCUPIERS LIABILTY ACT (supra), the lawful visitors are invitee and licensee . The persons, who enter into the premise for purpose in the exercise of the right conferred by law, are to be treated as permitted by the occupier to be there for the purpose, where there in fact have his permission or not, examples are a police man with search warrants, meter readers, fire fighter and others.
In order for the occupier of the premises to be held liable in the case of visitors, there must be permission whether express or implied, and when the permission impliedly given, its from a person who claim for existence of implied permission to prove on the fact it exist. In the case of LOWERY v WALKER (supra) it was held that, the entrants were licensee and when one of them was injured by a wild horse which the defendant had put into the field without warning, he was able to recover as there was a permission from the occupier.
Circumstances where the occupier will be exempted from liability of his visitors
1. If the occupier warned the visitor about the danger
This is provided for under section 3(4) (a) of OCCUPIERS LIABILITY ACT (supra) which is provide that, where the visitor had been warned of the danger which he had suffered the damage from, the occupier will not be liable for that damage, but the warning must be reasonable to ensure the safety of the visitor, otherwise he will still be liable for the same. In the case of FERGUSON v WELSH (supra) it was held that, the occupier of the premises cannot be held liable, where the occupier has put in his premise reasonable warning.
2. Where the damage caused is a result of the work done by an independent contractor
Where the damage caused to a visitor is due to the faulty execution of any work of construction, maintenance, or repair by an independent contractor employed by the occupier, the occupy will not be liable if he had taken a reasonable care to ensure that the independent contractor are performing their work competently. But if he did not take any step to ensure that, the work is done properly, he will still be liable for the injury which will be sustained by the visitors
3. Where the occupier has take a reasonable care to ensure that, the visitors are safe
if the occupier has take a reasonable care to protect the visitors by ensuring that, his premises are safe for the purpose from which the visitors were invited or permitted to, then he will not be liable for any injury sustained b y the visitors. This was the legal; position in the case of A.M.F v MAGNET BUILDING LTD 1968) 2 ALLER 789 where it was stated that, an occupier is not an insurer against all risks, he is expected in general to take only reasonable care, and if he does he will not be liable for any injury sustained by the visitors
4. Where the visitor has full knowledge of the danger or where the danger is obvious
The occupiers will not be liable if the invitee had full knowledge of he nature and the extent of the danger, in the case of FAIRMAN v PERPURTUAL INVESTIMENT BUILDING SOCIETY (1923) A.C 74 where it was held that the plaintiff being a licensee, the defendants could not be liable. In this case the injury to the plaintiff was due to the danger which was obvious and could have been observed by her, the defendant could not be made liable for the same.
5. Where there is a latent defect
This can be well illustrated in the case of CATE V MONGINE BROS (1971) 19 Bom. LR 778 the plaintiff was injured by the fan fell on her. In action for negligence against the defendants it was found that, the fan had fallen due to the latent defects, in the metal of suspension rod and the same could have not have been discovered by reasonable care on the part of the defendant.
Occupier’s liability towards trespasser
In the case ROBERT ADDIES AND SONS v. DUMBRECK (1929) A.C 338)a trespasser was defined as a person who goes upon the premise without invitation of any sort and whose of presence is either unknown to the proprietor or if known, is particularly objected to, Therefore this is to the effect that the entrants come on the land at his own risk and no duty whether is owed in respect of the condition of premises. This work under the general principle that;” he who trespass does so at his own peril” Although THE OCCUPIER’S LIABILITY ACT of 1957, was silent about liability of the occupier towards the trespasser, but still the occupiers were held to be liable under the occupiers liability Act of 1984 on the following circumstance. Hereunder explained are the circumstances:
An occupier of the premises can not cause willful injury except what is reasonable necessary to avoid the entry to the trespasser or expel him after entry this means that an occupier who intentional create danger to the trespasser was be liable. Then an occupier also will be liable when he does a negligent act with the knowledge of trespasser to be present in his premise. In the case of MOURTON V FOUTHER (1930)2KB 183 the defendant felled a tree knowing that the children were under it, and harmed them. He was held liable though the were trespassers.
Also if the occupier complies with the frequent act of trespass, he is deemed to have licensed the entry of others in his premise. Such visitors become entitled to the rights of licensee on the land; this can be proved by the case of LOWREY v WALKER (1911) A.C 10 where the court held that, the plaintiff was deemed to have tactic permission from the defendant, he was the licensee and therefore the defendant was held to be liable for the injuries.
Due to the silence of THE OCCUPIERS LIABILITY ACT OF 1957, the OCCUPIER LIABILITY ACT OF 1984was enacted to provide for the liability of the occupier toward the trespasser, as a man does not loss all right merely because is a trespasser . Section 1(3) of OCCUPIER’S LIABILITY ACT provides for the duty of the occupier to take reasonable care toward the trespasser as if they are the lawful visitors, failure to take care of them, will make the occupier being liable for the injury sustained. In order for the occupier of the premises to be held liable for the damage suffered by the trespasser the following ground must exist.
Firstthe occupier must be aware of the danger or has reasonable ground to believe that it exists. Second he knows or has reasonable ground to believe that the trespasser is in vicinity of the danger consent or that he may come in the vicinity of the danger, and third is that the risk is one which in the circumstances of the case the occupier may reasonable expected to offer the other protection to ensure that the trespasser is not harmed. These grounds were stated in the case of SWAIN V NATAI RAM POLI
Exceptions to the liability of the occupier towards the trespasser
1. Where the occupier protects his premise with reasonable protections
The occupier will not be liable, if he will prove that the danger created to the trespasser was as a result of reasonable measure of the defense of his premise, example use of pieces of glasses of top of the wall, spikes, or barbed wires, he will not be liable. In the case of BIRD V HELBROOK 1824)4 BING 628 it was held that; the occupier was not held liable because the plaintiff created danger himself to the trespasser.
However if the occupier puts retributive measures to protect his premise he will be liable for the injuries sustained, in the case of CHERUBIN v. STATE OF BIHAR A.I.R 1984 Mad 103 where the defendant was held to be liable as he kept naked electric wire to prevent the trespassers from using the latrine, as a result it caused death to one of the trespasser as he was electrocuted.
2. Where there is a clear demarcation between the area where the visitor can lawful enter and area of prohibition.
However, if the two areas are not clearly demarcated the occupier will still be liable for the injuries sustained by the visitor, in the case of PEARSON v COLEMAN BROTHERS where the defendant was held liable for failure to clearly demarcate between the prohibited area and the area where the visitors have to enter lawful from which the plaintiff suffered damage after visiting the prohibited zoo area.
3. Where the occupier has fulfilled his duty of care
An occupier owes the duty of care to the trespasser, if the occupiers has taken that duty of care he will not be held liable for the injury of the trespassers in his premises, as in the case of TOMLISON V CONGLETON (2003) [2003] VICHL 47(2003) ALL ER in which the House of Lord held that “the defendant exercised all reasonable duty of care by putting the signs but because the claimant misjudged himself the defendant an occupier was not held liable”
Other circumstances from which the occupier may avoid liability can be seen from the defenses of these tort, apart from warning which has already discussed above, other defenses are as follows;-
1. Exclusion clauses
This defense is provided for under section 3(1)of the OCCUPIERS LIABILITY ACT of Tanzania of 1964. Exclusion clause are the attempts to exclude liability, which was already arisen, example, the occupier may put this phrase “ any liability for any damage to property or personal injury howsoever arising is hereby excluded.” This can be proved in the case of ASHDOWN v SAMUEL WILLIAMS & SONS LTD the claimant was unable to recover from injuries sustained in a shunting yard because notices excluding liability were sufficiently brought to her attention.
However use of exclusion clauses, is subject to some qualification, where by it can not apply where the person is entering under a legal right, to children’s who can not read or understand its implication fully, and if there was negligence on the side of the occupier
2. Volenti notice
This defense is provided under section 3 (5)of the OCCUPIERS LIABILITY of 1968. These are notices which attempts to make visitors volenti, that is be regarded as assuming their own risk. Example of volenti notice may “ person entering this premise do at their own risk. The risk must, however, be fully understood by the visitor. In the case of SIMMS v LEIGH RFC it was held that there was no liability to the occupiers who was a rugby football player when the injury was sustained within normal rules of the game.
However a mere knowledge of the risk is also insufficient as it must be accepted. In the case of WHITE v BLACKMORE general knowledge that jalopy racing was dangerous did not mean that, the claimant had accepted inadequate safely arrangement. The defendants were held to be liable accordingly. Also if the claimant has no choice, then there is consent cannot be used as a defense, this can be seen it the case of BURNETT v. BRITISH WATER WAYS BOARD
3. Contributory negligence
Sometimes the occupier will be partially liable for the damage sustained by the visitor, if the visitor has in one way or another contributed to the injuries he had suffered, in the case of REVIL v. NEWBERY here the plaintiff damages was divided with the defendant by two-third, as he has contributed to the injury he had sustained, the court observed that, the act of the plaintiff to go to the premise of the occupier at mid night brought suspicion on the side of the defendant who reacted accordingly. Therefore under this the occupier is partly exonerated from liability.
CONCLSION
Generally, it can be stated that, the fate under the principle of occupiers liability is equal and square, this is because, there are circumstances were the occupier is held liable under certainity due to the failure of maintaining the safety of his premises, but there are also circumstances where he is exempted from liability, but under the same circumstances are not conclusive as there are also exceptions under the circumstances from which the occupier is held liable as discussed above. Therefore, it is of great important if the occupiers to be carefully in their action, so as to avoid this legal liability
Generally, it can be stated that, the fate under the principle of occupiers liability is equal and square, this is because, there are circumstances were the occupier is held liable under certainity due to the failure of maintaining the safety of his premises, but there are also circumstances where he is exempted from liability, but under the same circumstances are not conclusive as there are also exceptions under the circumstances from which the occupier is held liable as discussed above. Therefore, it is of great important if the occupiers to be carefully in their action, so as to avoid this legal liability
BIBLIOGRAPHY
BOOKS
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Dr J.N. Pandey, LAW OF TORTS AND CONSUMER PROTECTION ACT, central law publication, 2005.
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John Murphy, STREET ON TORTS, 11th edn, oxford university press, 2005.
Ratanlal & dhirajlal, THE LAW OF TORTS, 24TH edn, wadha & company Nagpur, 2007
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