This is the liability of an occupier of premises for damage a done to visitors to the premises.
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 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 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.
MODERN LAW ON OCCUPIER‟S LIABILITY
The 1952 Act abolished the common law distinction between invitees, licensees and the substitution for it was a single duty of care owed 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 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 law for they are to be treated as permitted 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. notice „no hawkers‟
The occupier may of course withdraw this implied license 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 going where he is expressly or impliedly warned 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 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.
COMMON DUTY OF CARE
The common duty of care owed to all visitors as well as an entrant on contract with implied terms is defined as a common duty of care. 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 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 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 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 openspace 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 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 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 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
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 the occupier 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 a danger due to the faulty execution of any work of construction, maintenance or repair an independent contractor employed 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 the defendant to repair the lift.
Held: That the defendant having employed a competent firm of engineers to make periodicalinspections 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 wilful 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 the occupiers liability act 1957.
The law underwent substantial alteration and development the House of Lords in BritishRailways 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 the courts of appeal on a number of occasions without undue difficulty.
The duty owed to a trespasser was eventually clarified 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 reason of the danger concerned and it may in appropriate circumstances be discharged 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 The Occupiers Act4, 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 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.