Occupier’s liabilityGroup members:

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Question: October 2007 part B Qs.2

Atan bought two tickets to the Gwen Stefani concert at Stadium Perdana .He gave one ticket to his 10 year old daughter, Bella, as a present and said that he would accompany her to the concert. On the day of the concert, they left early, anticipating that there will be heavy traffic on the highway and a massive crowd waiting to enter the stadium.

Upon finding their seats, Atan realized that his seat was quite wobbly. Some of the screws of the seat were missing but since there were no other available seats, he had to sit in it anyway. The concert began with a fast number from the singer. Atan enjoyed the song so much that he started shaking his body to the beat of the music.

His seat suddenly gave way from bracket which secured it and fell downwards. Atan injured his face and arm because of the fall. A security officer was called and Atan was brought to a little medical centre in the stadium. Since Bella still wanted to continue watching the concert, the security officer agreed to take care of her until the concert ended. Atan said he will wait for her at the medical centre.

When the concert ended, Bella wanted so much to meet Gwen Stefani backstage. Before the security officer could stop her she ran towards backstage and was no longer in sight. Bella came to a section at the back of the stadium. She saw a door marked in red block letters, “STRICTLY NO ENTRANCE TO UNAUTHORISED PERSONNEL!” Thinking that it was the door to Gwen Stefani could be seenon the walls

Bella tripped on what seemed to be a box and fell on a sharp object. She cut her arm badly. The security officer found her and took her to a hospital . It was later discovered that the room was actually an abandoned store room.

Advise the management of Stadium Perdana as to their liability towards Atan and Bella.

ISSUE

• Whether Stadium Perdana is liable towards Atan and Bella under occupier’s liability.

What is Occupier’s Liability?

• An occupiers’ liability arises in a situation where the premises are not as safe as it should reasonably be and this defective state, which includes activities carried out on the premises; causes injury or damage to the plaintiff.

Who is occupier?Wheat v Lacon & Co Ltd

The defendant owned a public house which was run by their manager. A license was given to the manager and his wife to use the first floor of the building for their own personal use but defendants had retained the right to conduct repair works. The manager and his wife received paying guests on the first floor with the permission of the defendants. The plaintiff, a patron had fallen down some steps from the first floor of the building, and died as a consequence of his injuries.Held: defendant had sufficient control over the private premises on the first floor together with the manager and thus both parties were occupiers and therefore jointly liable.

The test is occupational control over the premises, which is control associated with and arising from presence in and use of, or activity on the premises. Liability is not based on ownership. Control need not be absolute or exclusive.

Therefore an occupier is someone who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.- the one who manage the premise is the occupier.

In this situation the occupier is the management of Stadium Perdana.

• The foundation of occupiers liability is occupational control, i.e. control associated with and arising from presence in and use of or activity in the premise.

What is the premise?

Premises include all forms of buildings, land spaces, vehicles which are used for carrying persons including tractors and structures such as scaffolding, ladders, walls, pylons and grandstands.

Wheeler v CopasFact: the plaintiff had borrowed a ladder from the defendant. The

ladder was broken and the plaintiff was injured whilst he was using it. It was held that even though a ladder constituted premises,the defendant was no longer an occupier as the ladder was lent to the plaintiff and the defendant no longer had control over the ladder. The defendant was however held liable in negligence.

In this situation the premise is Stadium Perdana

Is there any hidden danger?

Latham v R Johnson & Nephew LtdThe court stated that concealed danger consists of

something hidden or concealed and the element of surprise. The premises might look safe but is in fact a trap.

In this situation the hidden danger is the sharp object that exist in the room at the back of the stadium that was marked in red block letters “STRICTLY NO ENTRANCE TO UNAUTHORISED PERSONNEL!” as the sharp object was not expected to be there.

Types of entrant

• There are 4 types of entrant:1. Contractual entrantsa) Main purpose entrant b) Ancillary purpose entrant2. Invitees3. Licensees4. Trespassers

• At common law, the duties of an occupier were cast in an descending scale of four different kind of person.

• The highest degree of care was owed by the occupier to one who entered in pursuance of a contract with him (for example, a guest in a hotel): in that case there was implied warranty that the premise were as safe as reasonable care could make them.

• A lower duty was owed to the “invitee”, that is to say, a person who (without any contract) entered on business of interest both to himself and the occupier ( for example 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 he knew or ought to have known.

• Lower still was the duty to the “licensee”, a person who entered with the occupiers express or implied permission but without any community of interest with the occupier: the occupier’s duty towards him was to warn him of any concealed danger or trap of which he actually knew.

• Finally, there was the “trespasser”, to whom under the original common law there was owed only a duty to abstain from deliberate or reckless injury.

• In this situation the types of entrant is the main purpose entrant which is the ancillary purpose entrant and another types of entrant is trespassers which is child trespassers due to allurement factor.

• The ancillary purpose entrant was applied for Atan’s situation while the child trespasser was applied for Bella’s situation which is due to allurement factor.

Common Duty of Care

• “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 premise for the purpose for which he is invited or permitted to be there”.

• The relevant circumstances in applying the common duty of care include the degree of care and of want of care that may be looked for in the particular visitor.

• Thus it can be said that Stadium Perdana management owe a duty of care as in all the circumstances of the case is reasonable to see that the audience will be reasonably safe in using the premise or facilities for the purpose for which he is invited or permitted to be there.

• Therefore, when Atan and Bella entered the Stadium, the Stadium Perdana management are legally bound to provide duty of care towards Atan and Bella.

• Moreover, Stadium Perdana management are to ensure that the condition and facilities provided in the Stadium are safe for use and free from any defects which might cause harm to the audience.

Law

• Ancillary purpose entrant:– Refers to a person who has paid to be on the

premises for the primary purpose of some activity other than as a personal dwelling, such as a patron at a cinema, a spectator at a sports event, passengers on a bus and etc.

• By applying into Atan’s case, Atan’s entry can be classified as an ancillary entrant:– a person who has paid to be on the premises for

the primary purpose of some activity.– Atan had paid for the ticket with the sole purpose

of watching Gwen Stefani perform at the concert, therefore the occupier which is the management of Stadium Perdana owes a duty of care towards Atan as he is an ancillary entrant.

• The occupier’s duty is to ensure that the premises are safe for that particular purpose.

• Case: Hall v. Brooklands Auto-Racing Club– Some spectators at a car-racing competition were

injured when two cars collided. The defendant was held not liable as the court found that they had discharged their duty in ensuring that the stand was free from any danger as far as was reasonable in those circumstances.

• A special mention must be made in relation to the standard of care owed to the spectators in sporting events. The duty of the occupier to ensure that the spectators’ safety is not absolute.

• He must use reasonable care but at the same time he is not required to guard spectators against every possible danger, but only against those danger that may be reasonable assume to be possible and expected according to the nature of the sport.

• In contrast to the Hall v Brooklands Auto-Racing Club, Stadium Perdana management should have foreseen that the wobbled seat would cause harm to anyone who sits on it but cannot foresee against every possible danger that might occur, but only against those danger that may be reasonable assume to be possible and expected to happen.

• In the case of Gillmore v. London County Council, the plaintiff fell during an exercise class as the floor was slippery. She successfully claimed against the defendant for the latter’s failure to ensure that the floor was suitable for physical exercises.

• Applying the Gillmore case into Atan’s situation, the management of Stadium Perdana has a duty to ensure that the seats which were sold to the audience in the premise (Stadium) was free from any danger as far for the use of that particular activity.

• This implies that that management must take reasonable steps and caution to ensure the seats were in a good condition or free from any defects which might cause harm to the audience while using it: (seating, moving the body to the beats of the music and etc) which are to be used by the audience during the period of the concert.

• Since it was a concert, the Stadium management must foresee that the crowd will get hype and cause body movement such as in the case of Atan.

• In a nutshell, we can conclude that the management of the Stadium Perdana has a duty of care to ensure that the seats provided was proper and reasonable for their audience use.

• 2nd Issue – Whether the management of Stadium Perdana is liable towards Bella?

Trespassers

• Definition : -A trespasser is a person who enters

premises without any express or implied permission of the occupier.

• Example : -• A wandering child, a thief, a person who has lost his

way, and so forth.

Child trespassers

• Children are less careful as compared to adults.

• The safety of children to a large extent lies on their parents and therefore an occupier has the right to question this responsibility or lack of it.

• In this case, Bella is a ten-year old. Thus, she is a child trespasser.

Application

• In the present case, Bella a ten-year old daughter of Atan, had attended the Gwen Stefani concert at Stadium Perdana with her father. When the concert had ended, Bella wanted so much to meet Gwen Stefani backstage. She ran to the backstage and had went into a room that she thought was Gwen Stefani’s room. As the room was pitch dark, she tripped and fell on a sharp object. She cut her arm badly.

• There was red block letters “STRICTLY NO ENTRACE TO UNAUTHORISED PERSONNEL” on the door. It means that the room was prohibited to other people. As Bella had entered the room without permission, she is a trespasser.

Case : British Railways Board v Herrington

• Facts : A six-year old child entered a piece of land which was open to the public and frequented by children. There was an electrified railway track owned by the defendants which ran across the land. The boy was severely injured when he went through a gap in a fence and stepped on the electric railway tracks.

• Held : The House of Lords found the defendants liable.

Application

• According to the case of British Railways Board v Herrington, although the occupier did not owe a duty towards a trespasser as that owed towards invitees, the occupier must take reasonable steps of common humanity and common sense to avoid danger; or to give warnings to people who might be on his premise.

• Therefore, if the presence of the trespasser is known or reasonably foreseeable, the occupier owes a duty towards the trespasser to warn him of the potential danger.

• In this case, the management of Stadium Perdana owed a duty to take reasonable steps to avoid danger to people who might be in the premise. As Gwen Stefani had performed at Stadium Perdana and obviously there were massive crowds, the management of Stadium Perdana should take reasonable steps to avoid danger. An abandoned store should be locked or barricade in fear of someone trespassing into it.

• The management of Stadium Perdana should have foreseen that fanatic fans of Gwen Stefani might trespass into the backstage to meet the singer.

• They ought to have known that fanatic fans, be it adult or children might went backstage to meet the singer and they had breached this duty when they failed to locked the door and put up sufficient warning signs.

Doctrine of ‘allurement’

• In BRB v Herrington, the general rule is that an occupier under no duty to prevent danger to trespassers, one exception is where the occupier places upon his land something which is dangerous and is an allurement to children. By putting the allurement there, the occupier is in a sense inviting children to meddle with the dangerous thing and it follows that a duty must be imposed on him.

• What may be an obvious danger to an adult might well constitute a concealed danger for a child.

Application

• It can be assumed that ‘Gwen Stefani’ is an object of allurement to fanatic child fans. Children who are fanatic fans might want to meet the singer backstage. Being children, they are oblivious to anything. They might think door with warning ‘STRICTLY NO ENTRACE TO UNAUTHORISED PERSONNEL' was the door to Gwen Stefani’s room.

• In this case, Bella had assumed that the door lead to Gwen Stefani’s room, she went into it. Bella was oblivious to the warning compared to reasonable adult who would think twice before entering the room with the warning.

• Although there was warning on the door, it is not sufficient as what may be an obvious danger to an adult might well constitute a concealed danger for a child.

DEFENCES

• In this situation, the management of Stadium Perdana can raise several defences in order to mitigate the damages. The defences are:

Defence• Warning– 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 without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.

– In most cases probably , a warning of the danger will be sufficient to enable the visitor to be reasonably safe and so amount to a discharged by the occupier of his duty of care , but if, for some reason , the warning is not sufficient than the occupier remains liable.

• Contributory negligence:– In this situation, Atan himself failed to take

reasonable precaution to avoid the danger . He should not shake his body to the beat of the music when he knows that the seat was not safe. Therefore, due to his negligence act, Stadium Perdana can raise this defence.

CONCLUSION

• As for the conclusion, we can conclude that Stadium Perdana is liable towards both Atan and Bella for causing injuries towards them.