OCCUPIERS’ LIABILITY UNDER TORTS LAW

The law of occupier’s liability is laid down in The Occupiers’ Liability Act, Cap 34, as read together with English common law.

OCCUPIER

The essential question is ‘who has the control of the premises?’ An occupier of premises is a person who has a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully upon the premises. Section 3(a) of the Kenyan Occupiers’ Liability Act looks at an occupier as a person occupying or having control over any fixed or movable structure including any vessel, vehicle or aircraft.

OCCUPIER’S LIABILITY (section 3(b))

An occupier of premises owes a common duty of care to all his visitors. The obligations are with respect to:

1.      Damage to property

2.      Injury to the person

3.      Damage of property of persons not themselves visitors

VISITORS

A visitor is generally a person to whom the occupier has given express or implied permission to enter.

Visitors include:

1.      Invitees and licensees (section 2(3)): when the occupier of the premises and the visitor have a common interest or the occupier has an interest in the visit of the visitor, the visitor is known as an invitee. When the occupier has no interest in the visitor, the visitor is known as a licensee. The duty owed to both is the same.

2.      Persons who enter the premises for any purposes in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether in fact they have his permission or not (section 3(6)). Examples of such persons include policemen and firemen carrying lawful duty.

3.      Where the duty of an occupier depends upon a term to be implied in a contract (section 4(1))

NATURE OF DUTY OF CARE

The duty of care of an occupier is a common duty of care.  The common duty of care 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 purposes for which he is invited or permitted by the occupier to be there (section 3(2)).

The question whether the occupier has fulfilled his duty to the visitor will depend upon the facts of the case (section 3(4)). All the circumstances must be taken into account and these include the degree of care and want of care. Special attention must be given to the following:

a) Duty of care as to children (Section 3(a))

An occupier must be prepared for the* children to be less careful than adults.  What is an obvious danger for an adult may be a trap for the children. Children may be allured* by certain dangerous objects, which the adults may like to avoid. The occupier must guard the child visitors even against such dangers from which the adults do not need protection (Glasgow Corporation V. Taylor).

b) Persons In Special Calling (Section (3b))

An occupier may expect that a person, in the exercise of his special calling, will appreciate and guard against any special risks ordinarily incident to it, so far the occupier leaves him free to do so. When a householder calls in a specialist to deal with a defective installation on his premises (e.g. an electrician), he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect (Roles V. Nathan). It is important to note that the fact that the plaintiff is an independent contractor is only a factor to be taken into account in determining whether there has been a breach of duty: his calling in itself is not a defense.

SPECIFIC ASPECTS (section 4)

a) Warning (section 3(4)(a))

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 by the occupier of his duty of care. But if, for some reason, the warning is not sufficient then the occupier remains liable. The question is whether a visitor with knowledge of the danger reasonably incurred it.

b) Independent Contractor (section 3(4)(b)

The independent contractor is liable where the occupier has ensured that the contractor was competent and had done his work properly. This is designed to afford some protection for the occupier who has engaged an independent contractor who has done the work in a faulty manner. The contractor is not only liable for injuries to visitors entering after the contractor has completed the work, but also to injuries caused during the work by reason of the system adopted by the contractor. Where an independent contractor has been employed, the question today is whether the occupier himself has done all that reasonable care requires of him. Since the occupier may be responsible where he has notice of the contractor’s incompetence or bad system of work, he can be liable to the contractor’s employee who is injured thereby (Furguson v. Welsh)

c) Contributory negligence

Where the invitee is guilty of lack of care for his own safety, the judges have on numerous occasions applied the Occupiers’ Liability Act without hesitation to reduce damages. Where the plaintiff’s fault is extreme, it may of course, amount to the sole legal cause of his loss.

d) Exclusion Of Liability (section 3(1))

The occupier may be able to discharge his duty by warning the visitor of the danger if the warning is enough to make the visitor reasonably safe. If he chooses to impose on the visitor permission to enter a condition excluding or restricting his duty, the answer will turn on whether or not the law of negligence and contract apply i.e. (a) the occupier cannot exclude or restrict his liability for death or persons’ injury resulting from negligence, (b) in the case of other or damage, a person cannot so exclude or restrict his liability except in so far as the term or notice satisfies the requirement reasonably.

The occupier’s power to exclude the common duty of care is, however, governed by the words ‘in so far as he is free to’ do so. He thus is not free to exclude policemen from his premises

e) Effect Of Contract On Occupier’s Liability To Third Parties (section 4)

Where a person contracts with the occupier for the use of premises on the footing that he is to be entitled to permit third persons to use them (e.g. restaurant), the duty owed by the occupier to those third persons is the same as those owed to the other party to the contract.

If this were to be allowed, a person could be deprived of his rights by a contract to which he is not a party and whose provisions he was unaware. That is, the occupier cannot reduce his obligations to visitors who are strangers to the contract to a level below that imposed by common duty of care. If, however, the contract requires him to take some precaution not required in the circumstances by that duty, the visitor shall have the benefit of that precaution.

Where third parties to a contract enter the building, the occupier will only be liable where the third parties perform obligations beyond the obligations involved in that duty. If the third parties are careless, then the occupier has no obligation.

Where the landlord is fully responsible for the maintenance or repair of the premises he has obligations to visitors to the building.

If the landlord allows the tenant to put the premises to wrong use and then there is damage, the landlord is liable.

HASSAN AND ANOTHER V. SOMA PROPERTIES LTD

Facts Of The Case

On 13^th November 1999, the plaintiff’s daughter, accompanied by her mother, was caught up in a gun battle between the police and bank robbers in a bank, Kenya Commercial Bank, in the property owned by the defendants, the Sarit Center.  The daughter, Sanya Hassan, was injured and wounded by shots that ensued from the gun battle and was hospitalized, both in Kenya and South Africa, but she eventually died. The father sued the occupiers of Sarit Center, Soma Properties Ltd, for compensation.

The Issues In Contention

1.      Whether the injuries sustained by the deceased were as a result of negligence and a breach of the common duty of care on the part of the defendant and or its servants or agents.

2.      Whether the defendant took adequate care by employing a professional security company at the premises to prevent injuries to the visitors thereto.

3.      Whether the defendant, as the owner of The Sarit Center premises would or could or did guarantee that robberies would not take place at the premises.

4.      Whether the doctrine of volenti non fit injuria is applicable in this case.

The Plaintiff argued that the owner of the premises owed common duty of care and cited the following grounds for his case:

1.      The owner should have taken reasonable care to ensure that any visitor in the premises was safe. This could be done by a screening device which, among other measures, could detect armed dangerous persons from the premises.

2.       At the time of the shooting, there ought to be have been some warning to the public of the presence of armed robbers.

3.      The defendants could have used metal detectors and search motor vehicles before entry, citing the 1988 Nairobi U.S.A Embassy bombing and a previous robbery attempt at the bank as lessons that should have been learnt.

 The Defendants put a defence as follows:

1.      The incident was not foreseeable (citing the authority in Golley v. Sutton London Borough Council( 2003)):a) They had taken adequate security measures as they had hired a reputable security firm to guard all the seven entrances to the center, the car park area and patrol the building, b) There were also two armed Kenya Police officers in the premises to provide public security. It was therefore not possible to foresee that the incident would occur, c) The Center receives thousands of visitors who came for shopping and to require them to be searched would displease and keep them away from the center, to the detriment of businesses in the center and d) The costs of putting up a closed circuit television would have been too enormous.

2.      They put up the defence of volenti non fit injuria, arguing that the deceased had voluntarily abandoned her rights thus exempting the Defendant from his duty of care. They further argued that the minor was in the company of a parent, the parent was negligent as she left the minor to wander into the public corridor, and thus voluntarily agreed to be shot at ( Buck Pitt and Oates (1968))  

Analysis And Judgement of the case

1.      Judge Ang'awa found that the defendants owed a duty of care to the deceased citing the provisions of Section 3 (1) and (2) of The Occupiers’ Liability Act, Cap 34, and the defendants had actually admitted that they owe a duty of care to their various visitors to their premises (customers, suppliers and other lawful visitors). The defence that the deceased consented could not stand because no one can consent to be shot at. The deceased was also a child and thus she could not be expected to take the care as an adult could have done, citing section 3(3)(a) of the Act. The judge thus dismissed the defence of volenti non fit injuria. She went by the decision in Letang v. Ottawa Electricity Railway(1926) in which it was held that ‘volenti non fit injuria affords no defence to an action of damages for personal injuries due to the dangerous condition of premises which the plaintiff has been invited to on an errand of business unless he freely agreed to incur it’.

2.      The Judge found that the defendants had not taken adequate measures to prevent injuries to the visitors to the premises i.e, a) the defendant was not carrying out checks on entrance for any arms carried into the premises, b) the defendant had not carried out an emergency drill for staff and members of the public in case of an emergency c) the defendant was aware of the security risks in the premises as evidence had been shown that the occupier, the Police and the contracted security firm, BM Security Ltd were in the process of having a meeting to address the security issue in the premises d) the defendant did not use the closed circuit television network to closely monitor security in the premises e) the defendant had not carried out an emergency evacuation drill for its staff and customers. The judge thus dismissed the defence of nonforeseeabilty.

Judgement: The deceased was owed a duty of care by the defendant and the defendant would be 100% liable for the liability.

Commentary and Concluding Remarks on the case

Based on the facts and arguments in front of the court, I am of the opinion that the judge came up with a correct decision. The case would, however, have been dismissed had the defendants put up strong defences, including some of the following:

1.      The practicality of precautions

The Judge should take into account the fact that it is impracticable to search all the visitors to the center. The Defendants aver that the center receives about 30,000 visitors in a month. The Defendants had also tried to physically search the visitors at the entrance to the center but this procedure resulted in keeping away customers. As a result, the cost of the precautionary measures would have overweighed the benefits. In Latimer v. AEC ltd, due to exceptionally heavy rainstorm, the respondent’s factory was flooded with water. Some oily substance got mixed up with water. After the water was drained away an oily film remained on the floor and the floor surface became slippery. The respondents spread all the available sawdust on the floors to get rid of the oily film but some areas remained uncovered due to lack of further supplies of sawdust. The appellant, who was an employee of the respondent’s factory, slipped from one of the such oily patches and was injured. He sued the respondents for negligence and contended that the respondents should have closed down the factory as a precaution until the danger disappeared. The House of Lords held that the risk created was not so great as to justify the precaution of closing down the factory with over 4,000, workers. The respondents had acted like a prudent man and, therefore, they were not liable for negligence.

In this case, the physical searching for arms in the about 30,000 visitors per month to the center would not be justifiable in the circumstances.

2.      No Liability when injury is reasonably not foreseeable

Where the injury is not reasonably foreseeable the defendant is not liable. To establish negligence, it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of injury has also to be shown. The idea is to guard against probabilities rather than bare possibilities. In Fardon v. Harcourt-Rivington, the defendant parked his car by the roadside and left a dog inside the car. The dog jumped about and smashed a glass panel. A splinter from the glass injured the plaintiff while he was walking past the car. It was held that the accident being very unlikely, there was no negligence in not taking a precaution against it and therefore the defendant was non liable. Lord Dunedin said that ‘if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken precautions. People must guard against fantastic possibilities’.

In this case the defendants were bound to guard against reasonable probabilities of armed robbers and not fantastic possibilities of their attack.

3.      Public Policy- the persons injured during gun fire between police and robbers

It is the duty of the State to provide security for all members of the public. Where armed robbers attack people, including businessmen and visitors in their working premises, it is the duty of the police to protect the people using professional techniques to deal with armed robbery.  Finding that the Defendant was responsible to keep away armed robbers is far fetched since armless security guards are not armed during the course of their work. Moreover, the judgment is going to open a flood of suits where any person injured in police fire against robbers will sue owners of premises for compensation. In Anns V. Merton Borough, the plaintiff purchased a number of houses from the defendants. The plaintiff later on found out that the houses were not on a sound foundation and was to incur a lot of money to make rectifications. It was held that the borough was liable. But this decision was overturned in Murphy v. Brentwood Corporation where it was held that a council would be led to bankruptcy, as it would be sued all over. As a result of this decision there is likely to be several suits where public is injured as a result of gun battles between the police and armed gangsters

4.      Emergency drill for customer protection against robbers?

Whereas it is possible and advisable to do this for its staff members, it may not be practicable to do it for the visitors to the center.