INTRODUCTION
When compared with citizens in the developed world, Nigerians (with particular reference to “home based” Nigerians) will rank among the least with the propensity to taking time off their daily hustles to relax, revitalize, or embark on routine vacations even within the country. While it is important to acknowledge lack of proper awareness and dearth of information at the disposal of the Nigerian public as to the benefits (be it health, education or social) accruing from embarking on proper vacation, it is equally important to observe that such seeming lethargy or lost of interest is most probably induced by heightened economic challenges which has extended through a lengthy period and has ensured that most Nigerian household cut off on such social luxuries as vacations to stay afloat while weathering persistent economic storm. With most Nigerians living below $2.00 a day according to the UN poverty index, it would be logical for one to arrive at the above conclusion. However, others may reasonably argue that there are limited places of interest such as standard theme park which could be of interest to the entire household. This to a large extend might be true for many who reside outside Abuja and Lagos. The trend however in recent years has improved with fun seekers patronizing amusement parks particularly during festivities.
While these attractions can be great for family fun and get- together, the rides and activities at most amusement parks have the potential to cause very serious injury if things go wrong. Some of such injuries can be quite devastating and has the abilities to alter the plaintiff’s quality of life and the normal everyday things in life that used to be easy can become very hard. These injuries can be costly both financially and emotionally. When visitors get injured at an amusement park they are entitled to claim damages and be compensated. The question then is who is responsible to pay such damages when an amusement park guest get injured? This piece therefore seeks not probe into the benefits of family vacation but to highlight the legal duties and liabilities of owners and managers of various recreational facilities and the rights of fun-seekers who patronize such facilities in event of injuries sustained while in used of the facility.
SUBJECT OVERVIEW
Occupier liability is the alternate term for the tortious liability for premises. These set of laws is used to determine who (if any) is liable when a particular condition or use of a premises causes any injury to a visitor. The law in this respect imposes on the occupier of the premises a duty of care which he owes the visitor to ensure his safety throughout the duration of his stay within the premises. Thus occupier liability is considered as a distinct form of negligence as it requires a duty of care.
Occupier liability would therefore generally refer to the duty owed by a property owner to those who come onto their property. It is important to note that the duty imposed on property owners do not bind exclusively property owners (strictu sensu) but can extend to controller or manager of the property as would be explained later. It is interesting to state that the duty of care owed the visitor by the occupier as required by the law extend beyond persons who are legally in the premises as visitors and as well cover trespassers. Different conditions however cover these set of persons and this is broadly dealt with below. Like the general tort of negligence, the liability on the occupier would rise upon omission to take action as legally requested of him to ensure the reasonable safety of visitors.
LEGAL FRAMEWORK
The law relating to occupiers’ liability originated in the English Common Law. Most Common Law jurisdictions have hauled in the common law and significantly modified it by enacting occupier liability statutes such as in England, the Occupiers Liability Act of 1957 – which imposes an obligation on occupiers with regard to ‘lawful visitors’ and subsequently the Occupiers liability of 1984 – which imposes liability on occupiers with regard to persons other than his visitor; and also in Canada, the Occupier’s Liability Act of 1980. Sadly there is no such modification in Nigeria as most courts in this jurisdiction still rely wholly on the somewhat obtuse common law principles in the 21st century to reach decisions in the complete absence of any domestic legislative promulgation providing for an important tortuous liability of this nature.[1] There is one bright spot though in Lagos State where the applicable statute is the Law Reform (Tort) Law.[2]
WHO IS AN OCCUPIER?
Neither the Common Law nor subsequent legislative enactments has provided any definitive guide on the true position of an occupier which would consequently bear the burden of the duty of care as imposed on him by the law. This has been a grey area which often place the court in an uncomfortable state as the status of the defendant(s) will have to be clearly established to allow the court determine the extent of his or her liability.[3]
Such necessary step was taken by the English court in Wheat v. Lacon & Co Ltd[4] where the status of the defendant was in issue. The erudite English judge Lord Denning having considered the matter in his judgment appeared to have defined conditions necessary for a defendant to be correctly considered an occupier. In his word, Lord Denning held thus;
“ where a person has sufficient degree of control over premises that he ought to realize any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’ and the occupier is under a duty to his visitor to use reasonable care.
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 onto the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.”
A brief summary of the fact of the case is that the plaintiff and her family stayed at a public house named ‘The Golfer’s Arms’ in Great Yarmouth, for a holiday. Unfortunately her husband died when he fell down the stairs and hit his head. The stairs were steep and narrow. The hand rail stopped two steps from the bottom of the stairs and there was no light in the bulb to light the stairs way. The plaintiff brought an action under the Occupiers Liability Act 1957 against Lacon, a brewery company that owned the freehold of the property and against the managers of the pub being Mr. & Mrs. Richardson who also occupied the pub as a licensee.
It was held that both the Richardson and Lacon were occupiers for the purposes of the occupier Liability Act 1957 and therefore both owed the common duty of care.[5]
The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control (there is no requirement of physical occupation). However, it was found that Lacon was not in breach of duty of care since the provision of light bulbs would have been part of the day to day management duties of the Richardsons. Since the Richardsons were not party to the appeal the plaintiff’s action failed.
The following points are deducible from the court’s decision in Wheat v. Lacon above and they will be our guide:
- What determines whether a person could be regarded as an occupier is a question of fact and could be ascertained based on the degree of control exercised in such person. This is usually rightly referred to as the occupational control of the property. It is therefore safe to say that a tenant in possession is an occupier.
Control however may not necessarily have to be complete or exclusive as an auctioneer hired to conduct a sale on a vendor’s premises may be considered an occupier of such premises at the instant time. Equally, an independent contractor carrying out building or repair work may qualify as an occupier. Every circumstance therefore is considered at its own merit.
- Liability will be on the person in control of the premises at the instant time of the accident which causes the injury to the plaintiff. In a nutshell, an occupier might not necessarily be the owner of the property but any person in possession of the property who has the responsibility for and control over the condition of the property, the activities conducted on the property and the persons admitted or excluded from entry into the property.
- There can be more than one occupier of a particular property.
Noteworthy is the fact that it is of no consequence if the person is either in physical control of the property or not.[6]
PREMISES
By the UK law the following are generally classified as premises for the purpose of determining entry and occupation in an action in occupational liability.
These include:
- Land
- Building i.e. houses and premises generally e.g. Sports arenas, Theme parks etc.
- Fixed Structures and
- Moveable structures including Vessel, Vehicles or Aircraft.
In the Canadian jurisdiction water, trailers and portable structures designed or used for residence, business or shelter are all classified as premises.
WHO IS A LAWFUL VISITOR?
In Common Law there was no use of the word lawful visitor and prior to the landmark decision in British Railway Board v. Herrington[7] and the subsequent intervention of the UK Occupiers Liability Act 1984; it does appear there were little or no duty whatsoever owed trespassers.
The duty of care from an occupier was only streamlined to cover these three classes of persons viz:
- Contractors
- Invitee and
- Lincensee
The above position was affirmed in the case of Fairman v. Perpetual Investment[8] where the court added the classic statement of law that:
“… the liability in tort of owner of premises to those who use them… varies; being lowest to trespassers; next to a licensee, and the greatest to a person whose position owing to the deficiencies of the English language is described by lawyers as invitees…”
In Common law, the most stringent of the duty of care was that owed to contractors since the duty owed them was based upon an implied warranty that the premises were fit for the purposes of fulfilling the contract. Next in that scale was a significant duty (though less in regard to that accorded contractors) to invitees e.g. customers of a shop, guests at a theme park and spectators at a sporting arena. This placed importance accorded invitees was based on the fact that occupiers derived benefits from their presence at the premises. The presence of licensees where tolerated by the occupier was only entitled to be put on notice of any concealed danger which is within the knowledge of the occupier. This distinctions has become necessary as doing so aids the court to arrive at the right ruling as regard the extend of the duty of occupier to the claimant and subsequent award of damages accruing therefrom. In the Nigerian case of Samson Ugochukwu v. Unipetrol Plc,[9] the Supreme Court had held that an injured visitor must prove that he was either a licensee or invitee to the premises in order to establish liability against an occupier.
The dichotomy created by the English Common Law in classifying persons owed various degree of duty of care by the occupier was however dismantled by the UK Occupiers’ Liability Act 1957. The Act rather imposes upon the occupier a ‘common duty of care’ to all his visitors removing the distinction between contractors, invitees and licensees. The occupier has “a duty to take such care in all the circumstances of the case as 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[10] by the occupier to be there”.[11] With notable emphasis in “invited or permitted”, the 1957 Act like the Common Law fell short of providing for a duty of care for trespassers. The overwhelming humanitarian concern for the safety of every individual irrespective of the status was possibly the impetus that inflamed the enactment of the 1984 Act which provided for a duty of care from the occupier owed to persons other than those invited or permitted in the premises.
Such concern for persons other than those invited or permitted in the premises was first raised in the Herrington case earlier stated. The plaintiff in the case aged 6 was electrocuted on a railway line after passing through a gap in a fence. It was found as a fact that the local station master was aware of the condition of the fence and the fact that children were in the habit of passing through it. The House of Lords in a landmark departure from the status quo held the defendants liable notwithstanding the fact that the plaintiff was a trespasser. The decision in this case marked the turning point in extending more compassionate treatment to trespassers.
IMPLICATION FOR AMUSEMENT PARK OPERATORS
Regardless of the distinctions in common law as regards different kind of entrants in a premise, there will almost always be only two types of injured plaintiffs in the case of an amusement park; someone who was admitted to the park and was allowed to be where they were when the accident happened (invitee) and a trespasser. Guests or visitors to an amusement park would be regarded as invitees to the park going by the express or implied invitation extended to such category of persons for patronage of the business. At the entrance of the Park, guests are required to pay to access the premises. When payment is made in that nature it creates an implied contract between the park operators and the individual guest which includes an implied terms that the park will be safe for the enjoyment of the activities and rides advertised and made available. Therefore beside this general duty, there is also a contractual duty owed to guest.
With this in mind, it is clear that operators of a theme park have very high duty of care to ensure that ride and every facility made available for individual guest to operate and for use are safe, and that reasonable steps are taken to ensure those enjoying their rides and activities are not exposed to an unnecessary risk of injury whilst doing so. There is an important need to ensure that the rides are safe, properly and regularly inspected and maintained, and the machinery is replaced as need arises. Operators of these facilities have a duty to prevent reasonable and foreseeable harm and provide a safe environment for its guest.
Interestingly, a duty not to cause intentional, unnecessary harm is also owed to a trespasser. One may trespass at a park by sneaking into the premises without the knowledge of the operator of the facility. Equally an invitee could also turn trespasser when he encroach into a restricted area. In such instance, where there was nothing warning him of the danger in such area, then the defendant will still be held to a higher invitee duty of care. When a 7 year old girl left circus tent to relieve herself in an amusement park; walked past lion cage in separate zoo enclosure where she was mauled. She sought damages for personal injury. Occupier was held liable as prohibited area had not been adequately marked off.[12] However, when danger is obvious enough to forewarn any reasonable being the defendant need not provide any further warning.[13]
In the case of an “uninvited trespasser”, the knowledge that a trespasser was likely to sneak in through a particular route into the park and that such person could be exposed to danger in so doing, place a higher duty of care on the defendant. He could still be held liable for personal injuries suffered by the trespasser within the premises.
DUTY OF CARE TO CHILDREN
An occupier must be prepared for children to be less careful than adults.[14] Therefore, if an amusement park occupier admits children to the premises the child visitor must be reasonably safe. This decision was reached where a father brought an action for damages for the death of his son who had eaten poison berries growing in one of the defendant’s public parks. The plant was easily accessible from children’s play area and it was said that the defendant had a duty to warn children against the danger or to prevent them from reaching the shrub.[15]
It is clear from the above scenario that occupier of an amusement park have a more compelling duty of care where he admits children as his guests to the park by not merely avoiding what could constitute pitfalls for them but should also avoid leading them into temptation. However, it is worthy of note that irrespective of such high duty of care expected from occupiers in this regard, the court in certain circumstances will not hesitate to shift such duty to the parent in whose company the child has been during the period of the visit to the park. Such courageous path was towed by the court in Simkiss v. Rhondda Borough Council [16] were a 7 year-old girl was left by her father to picnic on a steep slope on land belonging to the local authority. She was injured when trying to slide down the slope. The father of the injured child had demanded damages in an action against the local authority for failure to fence the land and/warn of danger. It was the court’s opinion that the father failed in her duty when he did consider to leave his daughter in such a dangerous situation. According to the court, it would therefore not be reasonable to expect a higher standard of care from the occupier and as such the action failed.[17]
FURTHER DUTY OF CARE EXPECTED FROM THE PARK OPERATOR
Outside the general duty of care, amusement park operators like other business proprietors must keep the grounds of the amusement park free from hidden dangers either by fixing them or adequately warning patrons. Conspicuous posts warning guests of existing dangers like warning of slippery surfaces, providing railings on steep stairs etc are necessary. Operators should also ensure to place boldly in conspicuous points instructions about proper use of rides and to ensure proper crowd control on each ride. For instance where a guest that is too big in size is allowed to access to a water splash boat ride and consequently fell off from the ride suffering injuries as a result, he could still have personal injury claim against the park management unless the man was clearly warned by the ride attendants about the danger of having a man his size ride on the facility.
In such a case therefore, it is not enough for the park management to argue that they had left signs informing guests of weight and height restrictions which could easily be read and understood before entering the ride. It is likely the management will still be liable for failing to properly supervise entrants and use of the facilities it offers. In the UK, the law provides that a warning given to the visitor will not be treated as absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe.[18]
INDEPENDENT CONTRACTOR
Where a danger is caused to a visitor due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by occupier, the occupier will not be answerable for the danger if in all circumstances he acted reasonably in entrusting the work to an independent contractor and took such steps (if any) as he reasonably ought to in order to satisfy himself that the contractor was competent and the work was properly done. In Haseldine v. Daw[19] a case decided long before the reform in the English law, the Engineer and not the occupier was liable to the visitor injured by a crashing lift in a block of flat.
CLAIMS FOR INJURIES SUFFERED
Injuries in parks come in form of trips, slips and fall. Sometimes such could be fatal and life altering such as spinal cord injuries, traumatic brain injuries and internal organ damages which occasionally could lead to death. The Court would often only award damages for physical injuries to the claimant were the person convincingly prove the following:
- That he suffered an injury or lost e.g. death of love one;
- That the property was owned, leased, occupied or controlled by the defendant;
- That the defendant owe you a duty of care;
- That the defendant breached that duty of care;
- The defendant was negligent in the use or maintenance of the property
- The defendant’s negligence was a substantial factor in causing the plaintiff’s injuries or death.
Injuries sometimes can also be purely psychiatric in nature where the guests for fear of their lives at an unexpected malfunctioning of a swing which is capable of inducing traumatic stress and psychological injury. Cases of this nature are rare in the Nigerian courts. It is therefore not clear whether or not the court in Nigeria would award claims in such instances. Damages in occupier liabilities are awarded for compensation, medical bills, rehabilitation and other calculable cost incurred by the victim.
DEFENCES
Defence in the tort of negligence generally comes in form of contributory negligence – whereby a claimant contributes to damage suffered due to their own contribution and volenti non fit injuria. Occupier liability being a variation of the tort of negligence accordingly affords defendants in an action in this regard same form of defence and also a cover in exclusion of liability.
In a nutshell a defence in occupiers’ liability comes in form of;
- Contributory Negligence
- Volenti non fit injuria and
- Exclusion of Liability.
The defence in contributory negligence is covered by S. 1 of the Law Reform Contributory Negligence Act 1945.[20] That provision allows damages to be reduced to a value that is just and equitable to the level of responsibility the claimant holds in the severity of their injury. In Sayers v Harlow District Council[21] the Plaintiff became imprisoned inside the defendants’ toilet because of the negligent maintenance of the door lock by the defendants’ servant. In trying to climb out of the toilet the Plaintiff fell and was injured. She recovered damages from the defendants because it was a reasonable act on her part to attempt to escape from the situation which the defendants by their negligence had placed her. However on the facts, the plaintiff was held guilty of contributory negligence, as having realised that she could not climb over the door, she should have appreciated that she could not rely entirely on the toilet roll holder to support her weight. Hence, she was 25 per cent to blame for the accident.
Volenti non fit injuria in this regard is a defence where there is an agreement, not necessarily constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, i.e., the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so.[22] Section 2 (5) of the Act[23] provides that while knowledge of danger does not deprive the visitor of a remedy, the occupier will not be liable in respect of risk willingly accepted as his by the visitor.[24]
An exclusion clause on the other hand is a term in a contract where a party to the contract seeks to exclude all liability for certain breaches of the contract or limit the person’s liability to specific listed conditions, circumstances, or situations. It can be inserted into a contract with the aim to exclude or limit one’s liability for breach of contract or negligence. However the party may only rely on such a clause if:
- It has been incorporated into the contract
- It has been made clear (explicit)
- Adheres to the Unfair Contract Terms Act (UCTA) 1977.
The 1957 Act expressly provides that “an occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.”[25] This provision gives backing to occupiers who opt to exclude liability in certain instances where a plaintiff suffers injury in the defendant’s premises. However, Section 2(1) of the Unfair Contract Terms Act (UCTA) has rendered as void any attempt where premises occupied for business purposes seek to exclude liability for death or personal injury caused by negligence, including breach of the common duty of care under the 1957 Act. Section 2(2) UCTA insist that where attempt to exclude liability for property damage is made, such will be subjected to the reasonableness test. This clearly implies that business premises like amusement parks are unable to hide under the protective cover of S 2 (1) of the UCTA to exclude liability for death or injury suffered by their guests.
CONCLUSION
While it is an established fact that there are isolated numbers of fun sites available for public use here in Nigeria in contradistinction to other developed societies with theme parks spread out at every major city, there is no doubt that Nigerians are fun lovers who enthusiastically utilize in large numbers the services of the few amusement centres available.
Equally, while the developed world has recorded corresponding high cases of casualties at such fun sites, not much of such incidence is heard of in Nigeria. Though we have been so far fortunate with accidents at amusement parks the Nigerian legal system need not wait to be overwhelmed by such cases before relevant legislation in respect of this aspect of the law is domesticated to suit our peculiar circumstances. It pricks my heart that most of the legislative enactments and judicial decisions cited in this work are foreign which of course will only be of persuasive value in our courts. That our courts will have to rely on the obsolete common law duty of care at this age is appalling. It is important that relevant reforms are carried out in our laws to accommodate modern developments in this aspect of the law as it is achieved in other jurisdictions.
[1] Note that the UK Occupiers Liability Act of 1957 and 1984 are not applicable in Nigerian Courts.
[2] Cap 115, Laws of Lagos State 1994. (Tailored after the English Occupiers Liability Act, 1957.)
[3]An occupier can equally be a corporate institution.
[4] 1996 AC 552
[5] It is possible to have more than one occupier
[6] See Indermaur v.Dames (1866) I CP 274
[7] (1972) AC 877
[8] (1923) AC 74
[9] (2002) 7 NWLR (Pt 765) 14
[10] Emphasis that of this author.
[11] Section 2 Occupiers’ Liability Act 1957
[12] Pearson v. Coleman Bros (1948) 2 All ER 274
[13] Staples v. West Dorset DC(1995) 93 LGR 536: (1995)EWCA Civ 30
[14] Section 2 (3) Occupiers’ Liability Act 1957
[15] Glasgow Corp v. Taylor (1922) 1AC 44
[16] (1983) 81 LGR 461
[17] See also Phipps v. Rochester Corporation(1955) 1 QB 450
[18] Section 2 (4) (a) Occupiers’ Liability Act 1957
[19] [1941] 2 KB 343.
[20] English law
[21] [1958] 1 WLR 623; [1958] 2 All ER 342
[22] A. J. E. Jaffey Volenti Non Fit Injuria the Cambridge Law Journal, Volume 44, Issue 1 March 1985; Published online: 01 January 2009
[23] Occupiers’ Liability Act 1957
[24] See Burnett v. British Waterways Board [1973] 1 W.L.R. 700
[25] Section 2(1)
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