TORT 2.3C OCCUPIER’S LIABILITY UNDER STATUTE
We move on to THE POSITION UNDER STATUE.
The English Occupier’s Act 1957 did not protect trespassers. However other statutes like the Occupier’s Liability Act 1984 preserves the common duty of care and the principle formulated in BRB V Herrington (above). i.e. higher duty is owed to child entrants).
Under Section 7(2) Law Reform (Tort Law) of Lagos State, Entrants are classified into two categories. i.e. Visitors and Trespassers. A VISITOR: Is a lawful entrant that is (expressly or impliedly) invited or permitted to enter the premises. A TRESPASSER: connotes the same as under common law.
A cursory view of the relevant provisions of the Law Reform (Tort Law) of Lagos State shows that the common duty of care and rule in BRB V Herrington is also preserved in Lagos. Additionally; Section 8 of the Law Reform (Tort Law) of Lagos provides the following which I think should be noted:
1_ Prudent and reasonable steps must be taken by the occupier to ensure that his premises is safe and that his visitor is protected by putting adequate warnings, fencing off dangerous parts of the premises, etc.
2_ A higher degree of care, prevention and warning is owed to a child trespasser. The occupier must expect that they are less careful and warning which may be sufficient for an adult may not suffice for a child entrant. See Perry V Butlins Holiday World. In Phipps V Rochester Corporation. A similar protection for child entrants/trespassers can be found in Section 2(3) of the English Occupiers Liability Act 1957. However there may be no duty for children who engage in excessively daring acts. In Keown V Coventry Healthcare NHS Trust, the 11-year old climbed the external fire escape of the Hospital’s building and fell hitting his head and suffered a brain damage. The court held that there was noting wrong with the fire escape. What had caused the risk was the child’s decision to climb it. See also Swain V Natui Ram Puri where the claimant a 9year old had climbed unto the defendant’s roof and fell.
3_ After knowledge that a child has trespassed, the occupier should try to prevent the reoccurrence of such trespass. Failure to do so would give rise to implied consent which makes the child a visitor.
4_ Where things that attract and entice children (like fruit trees) are on the land, the owner should take reasonable care to prevent a child from trespassing. He would be liable if danger occurs from such trespass. (Allurement principle). In Glasgow Corporation v. Taylor, the defendant was held liable when a child ate some poisonous berries from his tree. Because the fruits were easily accessible to children and there were no warnings. See also Williams V Cardiff Corporation.
5_ A professional, coming to exercise his calling should be protected from risk incident to such calling or profession.
You can also check out the Lagos Law if you need more.