Vivian Gray Jr., Contributor
WITH ANOTHER holiday now upon us, hopefully people will be getting out and about; enjoying the fresh air and visiting places of interest.
We enter once again however, the high season for persons visiting such places to sustain injuries from defects in the premises or from things on the premises. Who is to be held responsible when a person visits a store, a park or the beach, for example, and sustains injuries?
The ready answer seems to be the store owner/occupier or the person having control over the park where that example is used. However, the law governing the liability of occupiers of premises for damages sustained on premises under his control is not as simple.
Occupier's liability is a particular area of negligence of special importance to people who have business premises. The law is a combination of Statute (The Occupiers Liability Act 1969) and the Common Law. According to the Law, every person who occupies premises has to take reasonable care to make sure that anyone coming onto the premises is reasonably safe, so that for example, the sidewalk in front of a store is kept free of debris likely to cause a person to trip and fall; spilled drinks are mopped up and escalators/elevators are in good condition. Anyone who is injured on someone else's premises that were not kept reasonably safe can sue the owner or a tenant.
It is to be noted, however, that while the law imposes a duty on the occupier of premises to ensure that the visitor is safe whilst using the premises for the reason he is permitted to be there, the law cuts both ways, so that the visitor also has a duty to care for his own safety. In the well established case of Wheat -v- E. Lacon & Co. 1966, Lord Diplock noted that "my neighbour does not enlarge my duty to care for his safety by neglecting it himself."
REASONABLE CARE
What this means is that even though the law imposes an obligation on the occupier to ensure that visitors are safe whilst on the premises, the visitor must take reasonable care for his own safety and he must not use the premises contrary to the purposes for which he was invited there.
Furthermore, the occupier's responsibility does not extend to anyone who is injured by going where he is warned not to go or by doing what no one would reasonably expect him to do.
"When I invite a person to my house to use the stairs, I do not invite him to slide down the banisters--" is a favourite quotation used by the courts when dismissing claims brought by visitors who suffer injury by using premises contrary to their invitation. Additionally, if the danger is obvious, or if a reasonable person would have appreciated the danger, the visitor must take steps to avoid it, otherwise he will not succeed in a claim against the occupier for negligence.
Just how careful then, do members of the public have to be when visiting places of interest, and how much can we rely upon the occupier's duty to take care of us?
Section 3 of the Occupiers Liability Act sets out the extent of the occupier's ordinary duty. That section provides that an occupier of premises owes "a common duty of care" to all his visitors.
The common duty of care is defined as the 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 purposes for which he was invited or permitted by the occupier to be there. This means that it is not enough for a business to fix a dangerous condition that has been noticed, or to warn of a known dangerous condition.
The duty imposed by law requires that the premises be inspected on a regular basis and the occupier must fix any dangerous condition within a reasonable time which, depending on the danger, could mean immediately.
The Act goes further to provide by Section 5 that where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
It follows therefore that where the occupier has taken reasonable steps to bring the danger to the notice of the visitor and the circumstances are such that the visitor can reasonably be expected to understand and appreciate the warning, the court may find that the occupier is not liable for damages caused to the visitor.
In relation to risks willingly accepted by the visitor, Section 7 of the Act provides that the common duty of care does not impose on an occupier any obligation to a visitor in respect of risk willingly accepted by that visitor. If therefore, the visitor is injured in circumstances where the danger is obvious the occupier will not be liable. The recent case of Darby -v- National Trust [2001] EWCA Civ 189 reaffirmed the dual responsibility principles, first laid down in Staples -v- West Dorset District Council [1995] PIQR 439.
In Staples' case, the plaintiff fell and sustained injuries on an obviously slippery surface. The Court of Appeal held that there was no duty on the occupier in the circumstances of that case to warn against the danger.
The key word is "obviously"; members of the general public cannot close their eyes and turn away from taking reasonable precautions themselves and then blame the occupier if they become injured.
A DUTY TO WARN
The Judge observed that "-- it can only be said that there [is] a duty to warn if, without a warning, the visitor in question would have been unaware of the nature and extent of the risk -- there may be circumstances in which even an explicit warning will not absolve the occupier from liability but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required."
In short, members of the public have a duty to protect themselves against particular risks. If the visitor willingly accepts the risk by ignoring warnings or if he uses the premises in a manner no one would reasonably expect him to do, the court may find that he was contributory negligent.
Another class of visitor the occupier should be aware of is a child. Children are generally owed a higher standard of care than adults, being that children are less responsible and prone to acting on childish instincts and impulses.
This is, of course, of special concern for sports facilities that run special programmes for children. In these cases the operators must be cognizant of the fact that they will have to meet the highest duty of care in respect to making certain their premises is safe.
This higher standard of care includes constant supervision in most cases. If occupiers do not take appropriate precautions and a child gets injured on their premises they quite probably will be held liable.
This increased duty of care extends even to the child trespasser. The law, however, grants that an occupier is entitled to expect that when accompanied by parents or guardians, such parents or guardians will act responsibly and supervise young children.
Parents should therefore not allow their children to wander aimlessly and unsupervised.In this season of merriment and party-going, remember the old adage: it is better to be safe than sorry. Wishing you a blessed and safe Christmas and everything good for 2004.
Vivian Gray Jr is a law student. E-mail:viviangrayjr@hotmail.com
