How the Occupier is Liable for Dangerous Premises?

How the Occupier is liable for Dangerous Premises?

Introduction

An occupier holds a responsibility for everyone who enters into premises or other structures like cars, ships, airplanes and lift because he is in the authority of the mentioned structures. He is responsible for personal safety and the safety of the property of all the people entered. There were not appropriate rules or laws regarding occupier’s liability before 1957. In 1957, Occupiers’ Liability Act, 1957 was passed in England and this Act made occupier liable towards the certain kinds of people who enter his premises often. There are three categories of people towards whom occupier will be liable, they are-

  • Obligation towards lawful visitors;
  • Obligation towards trespassers;
  • Obligation towards children.

Who is an Occupier?

Before discussing these categories let’s discuss who is an Occupier?
The occupier is a person who has an authority or control over the premises and it is not mandatory that he should be the physical owner or occupier. There is no such definition of the occupier given in the Occupiers’ Liability Act, 1957. How the court defines an occupier depends on the nature of the facts of a particular case.

Case- Wheat v. Lacon – A paying guest died in a pub as he fell from the stairs which were not properly lit. The representatives of the deceased sued the owners and mentioned them responsible for the death. The defendants pleaded that they could not be held liable as the bulb near the staircase was removed by the unknown person. The House of Lords held that owners could be held liable for dangerous premises but in this case since the staircase was not properly lit, it was the responsibility of the deceased that he could had took due diligence and care while using them.

Obligation towards Lawful Visitors

Before the enactment of Occupiers’ Liability Act 1957, the occupier’s liability was determined by the application of common laws. In common law the lawful visitors were categorised into two- invitees and licensees and both were treated with separate rules of liabilities towards them.
When the occupier and visitor has a common interest in the visit of the premises then the visitor is known as “ invitee” and when the visitor has interest and occupier has no interest in the visit, the visitor is known as a “licensee”.

Duty towards an Invitee– The occupier had a responsibility to take reasonable care to prevent any damages to the invitee from any unforeseen danger on his premises about which he had knowledge or ought to have knowledge. The occupier held a responsibility towards the invitee for loss caused to him by any unusual danger which the occupier knew or supposed to have known.

Case – Pillutla Savitri v. G.K. Kumar- The plaintiff’s husband was a practicing lawyer at Guntur. He was relaxing in front of his rented premises on the ground floor when suddenly a portion which was under construction on the first floor of the premises collapsed because of which the sunshade and the parapet fell down on the lawyer and he died at the spot. The Court held the defendants liable for the death as they were getting the construction done and were assumed to be negligent and the construction work was unauthorized. Hence the defendants were declared liable.

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Duty towards Licensee- A licensee is a person who enters into the premises with the expressed or implied permission of the occupier but has his own interest and occupier have no personal interest in the visit by a licensee. Although the occupier had a duty to make aware of or give warning of any known or concealed danger but he held no responsibility of any loss or injury caused to the licensee from a danger known to him and the licensee appreciated the same thing.

Case- Fairman v. Perpetual Investments Building- The plaintiff went to stay with her sister who used to live in a building owned by the defendant and it was let out to the husband of the plaintiff’s sister. The defendants had the possession of the staircase. The staircase had a depression in one of the stairs and the plaintiff’s heel got caught in the depression and she fell from there which resulted in her getting injured. The Court held that the plaintiff was a licensee and defendants can only be held liable for the concealed dangers towards her. The plaintiff got injured due to the danger which was obvious and could be avoided if she had taken necessary care and defendants were not held liable for the injury.

In the Occupiers’ Liability Act, 1957, the liability of the occupier towards both the invitee and licensee are made same and he will be responsible for all the damages caused to both of them in his premises. It is given in Section 2(1) that the occupier holds “common duty of care” towards all his lawful visitors. The provisions of the section are- “a duty to take care as 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 be there.”

In India liability of an occupier is not mentioned anywhere but in the Indian Easement Act, 1882, the duties of a licensor towards a licensee have been given under Sections 57 and 58. Section 57 says that the licensor holds a duty to disclose about any defect or danger present in his premises to the licensee which can be dangerous for the life and property of the latter and about which the licensor is aware but not the licensee.

Section 58 says that the licensor is not bound to do anything which likely to effect the property under the licence dangerous to the person or property of the licensee.

Case- Lakshmichand Khetsy Punja v. Ratanbai – The tenant used to live on the fourth floor of a building owned by the defendant, the tenant got killed by falling of a wall of the privy. There was a structural defect in the wall and the defendant knew about it but still had not made any arrangements to repair it. The Bombay High Court held that the defendant landlord failed in complying his duties given under Sec 57 of the Indian Easement Act, 1882 and was liable to pay compensation.

Obligation towards Trespassers

The liability towards a trespasser is not covered under the act; it is still governed by the common laws.

Who is a Trespasser?

A trespasser is known as a person who enters into the property of the owner without his knowledge and permission and whose presence will be objected by the owner of that property.

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When a trespasser frequently visits the property of the occupier and occupier is well acquainted with his frequent visits, then the trespasser is deemed to be a licensee and any injury or loss happened to him will be a liability towards the occupier.

Case- Lowrey v. Walker- The defendant was the occupier of a field which the people used as a short cut for going to the railway station for over thirty five years. The defendant occasionally objected this but never took any steps to stop people entering into his premises. The plaintiff who was once trying to cross the field was attacked by an angry horse and was badly injured. The horse was kept by the defendant there and he had not issued any notice for the same. It was held that the plaintiff was presumed to be the permitted visitor by the defendant and so was a licensee and therefore the defendant was held liable for the injuries endured by the plaintiff.

When the area which is lawfully permitted to the visitor for visits but some part of it is prohibited and if the visitor goes to that prohibited area then it will amount to trespass.

Case– Mokshada Sundari v. Union of India- The plaintiff’s husband was trying to cross a railway track when he was knocked down by the passing engine and he died. The deceased had a monthly railway ticket and he was also about to get his ticket renewed. The plaintiff claimed that Railway authority was liable for her husband’s death. However, the Calcutta High Court held that her husband was a trespasser and he crossed the railway track without any permission and due diligence and the fact that he had a monthly railway ticket and he was about to renew it did not alter the position and so railway authorities could not be held responsible for his death as the deceased had no right to use the railway track.

When the prohibited area has not been marked properly in that case a visitor cannot be held as a trespasser.

Case- Pearson v. Coleman Brothers-The defendants owned a circus and were giving performance in the show in a tent which was located in a field. The animals were kept in cages in an area which was mentioned as ‘zoo large’. The plaintiff who was a seven years old girl who was one of the audiences at the circus went out to find an appropriate place to relieve herself. She came across a cage from which a lion put out his claws and attacked the girl. The Court of Appeal observed that since the defendants had not marked the area as a prohibited and the child was an invitee, not only to the tent of the circus but to the whole area where the circus was held, she was entitled to recover.

What is the Nature of the Duty of an Occupier towards a Trespasser?

In Occupiers’ Liability Act, 1957 there are no such provisions provided which can hold an occupier responsible for any loss or injury to the trespasser and so it is governed by the Common Laws. An occupier cannot be expected to make his premises safe for the trespasser but he cannot make his premises dangerous that too deliberately for the trespasser. If the presence of trespasser is not known and expected then the occupier holds no liability towards him.

Case- Robert Addie & Sons (Collieries) Ltd. v. Dumbreck- The defendants were colliery owners and had a field in the premises where a wheel used to work as a part of their haulage apparatus. Children used to play close to the wheel but they were warned about the wheel from time to time. The plaintiff’s four years old son was playing near the proximity of the wheel and was crushed to death when the wheel was working. The workers made the wheel working and they were at such a distance that both the wheel and child were invisible to them. The Court held that the child was a trespasser and his presence was not known and so the defendants did not have any duty towards the deceased child and were not held responsible.

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If the occupier had not attached any warning of a danger or concealed the fact of his premises having danger and the trespasser suffers some injury or loss, then the former can be held liable.

Case- Ramanuja Mudali v. M. Gangan- The Defendant was a land owner and had laid electric wire on his land and he had not attached any warning about it. The plaintiff was passing through the land at around 10 p.m. in order to reach his own land was unaware about the wire and there was no light in the area came into contract with the wire and was injured. It was observed that the owner of the land holds a duty to mention that he has laid electric wire for fencing and if he fails to do so he is liable for the damages caused because of those wires.

Obligation towards Children

The Act of 1957 states that an occupier must be prepared for the children who are supposed to be less careful than adults. An expected danger for an adult can proved to be a trap for the children. Children can feel attracted towards a dangerous object which the adults will surely avoid. It is the duty of an occupier to make children well aware about the dangers which are present in his premises.

Case – Glasgow Corporation v. Taylor– A Park was under the control of the defendants. A seven year old child picked up some berries from the shrubs and ate them which resulted in his death because berries were poisonous. The berries were allurement for a child but defendants had not taken any reasonable care or warned the child or any children about the nature of the berries being poisonous. The father of the deceased pleaded that the defendants must be held liable and the court observed the same. Lord Summer said- “Although the child had no right to pluck berries but the defendants had no right to tempt a child to its death or expose his temptation regardless of consequences.”

Conclusion

An occupier holds a big duty when someone enters his premises. Even if a trespasser enters his property without his will or permission, the occupier must take reasonable steps and care that his actions or danger present in his property doesn’t harm the trespasser. This is not only obligatory in laws but also as a social and moral duty a very necessary element. The human must realise his actual duties and with due diligence of observing law should act in such a manner which does not cause any harm to anyone’s person or property.

Author: Samiksha Mehta,
Invertis University/ Student ( LL.B 3rd year

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