Negligence and Occupier’s Liability for Dangerous Premises
An occupier of premises or of other structures like cars, ships, airplanes or lifts owes an obligation to the persons who enter those premises, or structures, in respect of their personal safety and the safety of their property there. The obligation of the occupier of certain premises varies according to the type of visitor on the land. The visitor may be (i) a lawful visitor, (ii) a trespasser, or (iii) a child.
In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. Suffice it that he has some degree of control. The expression ‘premises’ includes not only land and buildings but also vehicles, railway carriages, lifts, etc. The liability of occupiers of premises is now governed under the English law by the Occupiers Liability Act, 1957 amended by the Occupiers Liability Act, 1984. The principles of the English Act are followed by the courts in India.
(1) Obligation towards Lawful Visitors
Prior to the passing of the Occupiers Liability Act, the common law classified the lawful visitors into two categories – invitees (when the occupier and the visitors had a common interest) and licensees (the visitors alone had an interest, viz. a customer at a shop, a salesman, a guest invited for a dinner).
The common law laid down separate rules for obligations towards each one of them. In the case of an ‘invitee’, the occupier’s duty was “to use reasonable care to prevent damage from unusual danger, which he knows or ought to know” In contrast as against a ‘licensee’, the occupier’s duty was to warn him of any latent defect or concealed danger which he actually knew. He was also not liable for any danger which was obvious, and the licensee must’ve appreciated the same.
In Cates v Mongini Bros. (1971)19 Born LR 778, the plaintiff went to the defendant\’s restaurant to take lunch and took a seat under a ceiling fan. The fan fell on her whereby she was injured. It was found that the fan had felled due to a latent defect in the suspension rod which could not have been discovered by reasonable care. The defendants were held not liable.
In Fairman v Perpetual Investment Building Society (1923) AC 74, the defendant was in possession of the common staircase. Owing to wearing of cement, there was a depression in one of the stairs, the plaintiff’s heel was caught in it, she fell down and got injured. It was held that the plaintiff being a licensee the defendant could be made liable towards her only for a concealed danger, while in this case the injury to the plaintiff was due to danger which was obvious and could have been observed by the plaintiff.
A ‘licensee’ is a person who enters on premises under a license from the occupier, either express or implied. A bare licensee is only entitled to use the place as he finds it. The licensee or guest must take care of himself, and no action will lie unless the accident by which he sustained the injury has been caused by the owner’s negligence.
The duty of the occupier is: (i) to caution him against any known insecurity or hidden danger which the occupier was aware, but the party was ignorant; (ii) not to alter the character of the place by placing on its dangerous obstructions. The position of a licensee is better than that of a trespasser in that he is entitled not to have the condition of the premises so altered as to set up a trap for him.
The classification of lawful visitors into invitees and licensees has now been done away with by the Occupiers Liability Act, 1957, under which an occupier is expected to observe towards the lawful visitors a “common duty of care”: “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 purpose for which he is invited or permitted to there.” The duty is not to ensure the visitor’s safety, but only to take reasonable care.
The common duty of care, however, may be extended, restricted, modified or excluded by an agreement between the parties. An occupier is supposed to take special care for the safety of the children. When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. In Roles v Nathan (1963) 2 All ER 908, two chimney sweepers were killed by CO gas while trying to seal a sweep hole in the chimney of a coke fired boiler while the fire was still alight, and the occupier was held not liable.
The occupier cannot exempt himself by giving a `warning of the danger’ to the visitor. The presence of warning will be only one fact to be considered in the text of reasonableness. Knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that knowledge or notice so as to avoid the danger. So, if there is only one way of getting in or out of premises and it was by a footbridge over a rotten / dangerous stream, the visitor if injured can make the occupier liable even though he is warned of the danger or has otherwise knowledge of it.