1.
We live in city, town or village and owing to our daily life, we usually visit commercial, industrial or such installations, where we work or go for personal reasons. For example - hospitals. The owners of such buildings or installations are supposed to take care of maintenance of these buildings. There is no such law in our country to protect the rights of those individuals who suffer injury due to malfunctioning of any equipment attached to buildings or bad conditions of building itself.
In England, there is Occupier's Liability Act, 1957, which was enacted as a result of the Report of a Law Reform Committee, 1952. The liability of occupier of premises is towards all the visitors/entrants, except trespassers, is now governed under the English law by the Occupier's Liability Act, 1957.
2.
It does not mean only land but also shop, factory, vehicle, railway carriages, scaffolding, aeroplane, ship or appliances attached with them like a lift or stairs etc.
3.
Q.
Occupier means the person who has control over the premises. The Law Lord in an important case Wheat v. E. Lason & Co., (1966) 1 All ER 582 (HL), laid down the meaning of the term 'occupier'-
"It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises. In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice is that he has some degree of control. He may share the control with others. Two or more may be occupiers. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequences of his failure but each may have a claim to contribution from the other."
The person who occupies the premises and who has control over them is the occupier. If a landlord lets his entire premises to a tenant, then it is the tenant who has control over them. If, an owner lets all the floors and flats to tenant and keeps staircase, balcony or some parts of roof, then the owner will be held responsible for any defect in the said part.
4.
(a)
(b)
(c)
Prior to the Act of 1957, the liability of an occupier varied according to the class of persons coming on his premises. There were four categories:
(a) person entering under a contract.
(b) invitee i.e., a person who enters for the purpose of occupier's business or for a business where both are mutually benefited.
(c) licensee i.e., a person who enters the premises with the permission of the occupier e.g. guest invited on dinner.
(d) a trespasser.
Accordingly, the duty of care owed by an occupier to these persons varied from top to bottom in decreasing manner.
The Occupier's Liability Act, 1957 abolished the distinction between an invitee and licensee. The occupier owes a single duty. The same common duty of care is owed by an occupier to contractual entrants. But, the trespassers are not covered in the Act.
A person is entitled to enter a premises with permission but sometimes a person enters the premises with implied permission. To decide such cases, general principles are to be followed and the entrant has to show that he had implied permission received from the occupier.
Some examples:
(i) A person who enters the premises to communicate with the occupier is presumed to have implied permission; Brunner v. Williams, 1975 Cr LR 250.
(ii) Tolerance of repeated trespass does not confer any licence but this factor may be taken into account in support of an implied licence; Lowery v. Walker, 1911 AC 10.
(iii) It should be noted that a visitor ceases to be a visitor if he goes to a place which is not covered by the permission; Lewis v. Ronald, (1967) 2 QB 393.
5.
Section 2(2) of the Occupier's Liability Act, 1957 states that the common duty of care which an occupier owes to all his visitors is 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 by the occupier to be there.
Section 2(3) of the said Act says that the circumstances relevant for the purpose will include 'the degree of care, and of want of care which would ordinarily be looked for in such a visitor'.
In the case City of Ferguson v. Marrow, 210 Federal Report (II) Series 520, the plaintiff, a youth of 21 years of age was an experienced but not an expert swimmer, took a dive in a swimming pool and got his head hit in the swimming pool against its bottom. It was found as a matter of fact that there was danger due to insufficiency of depth of water in the pool. The Court held the pool authorities liable.
Klaus Mittlebachert v. East India Hotels Ltd., AIR 1997 Del 201: 1999 ACJ 287: 1997 II AD (Del) 23: 65 (1997) DLT 428: 1997 (40) DRJ 147.-
In this case, the victim was a German national who while taking a dive in a swimming pool in the 5-star hotel hit his head against the bottom of the pool. He suffered severe injuries, resulting in paralysis and he died after 13 years of accident. It was found that in the swimming pool, water was not sufficient. The Court held the hotel liable for defective design of the swimming pool. The court observed as follows:-
"A 5-star hotel charging a high or fancy price from its guests owes a high degree of care to its guests as regards quality and safety of its structure and services it offers and makes available. Any patent defect in its structure or services, which is hazardous to guests, would attract strict liability to compensate for consequences flowing from its breach of duty to take care. The 5-star price tag hanging on the service pack attracts and costs an obligation to pay exemplary damages if an occasion may arise for the purpose. A 5-star hotel cannot be heard to say that its structure and services satisfied the standard of safety of the time when it was built or introduced. It has to update itself with the latest and advanced standards of safety."
Hawkins v. Coulsdon & Purley U.D.C., (1954) 1 QB 319.-
In this case, Donning L.J. observed - "that the difference between an adult visitor and a child visitor is that the child will meddle where the adult will not and so what is safe for an adult may not be safe for a child".
Glasgow Corporation v. Taylor, (1922) 1 AC 44.-
Corporation maintained a public park which was much frequented by the children. A child, 7 years of age picked up some berries from shrub and ate it, shrub was poisonous, the child died. The Court was of the view that the existence of poisonous berries was known to corporation but it did not make any effort to warn or stop children from reaching berries and hence corporation was liable for want of due care.
In G.C. Contractors v. Christman.-
The facts were that a window cleaner was engaged to clean the windows of a club. One of the windows was defective and when it was being cleaned, it fell down quickly and trapped the cleaner's hand. The court observed that the window cleaner had no cause of action against the club for the risk of a defective window which is incidental to the calling of a window cleaner. But, in case of a guest, the result would have been different.
6.
Any structure, which has been erected sideways of highway should be in good condition, so that it could not cause danger to passers-by. If, building or construction causes damages to anyone then the owner will be held liable.
Kallulal v. Hemchand, AIR 1958 MP 48.-
The appellant was the owner of a house adjoining the highway. By the side of the house, stalls on thelas used to be kept nearby the house adjoining the highway. During rainy season, one day, the wall collapsed, killing two children of respondent. The MP High Court applied the maxim res ipsa loquitur and held that the collapse of the wall was itself an evidence that the said wall was not properly maintained or was in bad shape. During rainy season 2-3 inches of rain is not unpredicted. It was not unforeseen or an Act of God. The rainfall ought to have been anticipated and provided against. The owner of the House was held liable.
7.
Q.
The Occupier's Liability Act, 1957 doesn't cover trespassers. The Occupier's duty towards trespasser is at the lowest in common Law.
In V. Krishna Naidu v. Union of India, MANU/TN/0585/1975 : AIR 1976 Mad 95, the taxi driver entered a railway level crossing which was provided with gates, gongs and red lights on both sides. When the gate was about to be closed and there was sufficient warning from ringing of gongs and the red lights were on. The Madras High Court observed that the taxi driver was a trespasser and can't be said to have entitled to recover any damage.
The duty and liability of an occupier towards trespassers have undergone considerable change by liberal judicial approach in the recent years, and later on by the Occupier's Liability Act, 1984.
In the case Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, 1929 AC 358 (HL), the House of Lords laid down the duty of care of an occupier towards trespasser in these words:
"Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from any concealed danger. The trespasser comes to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser or at least some act done with reckless disregard of the presence of the trespasser."
Thus, in the above case, it was held that an occupier did not owe any duty of care to a trespasser except that not to inflict injury intentionally or recklessly on a trespasser known to be present.
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