TORT 2.3D OCCUPIERS LIABILITY (DEFENCES)
DEFENCES. I.E. the Common Duty of Care can be extinguished in the following situations:
– Where the occupier has put sufficient and apparent notice and warning of the danger inherent in his property. (A higher degree is needed for child trespassers).
– Where the visitor does not keep within his bounds. Section 8 Lagos Law.
– Where the occupier has showed and warned the visitor about the dangerous parts of the house.
– Where the occupier has forewarned the visitor of the hazardous consequences of operating in a part of the house. In Roles V Nathan, chimneysweepers disregarded the warning by the occupier that they should not sweep the chimney when it is lit because of the carbon monoxide it emitted. They died from the smoke and their widows brought claims under occupiers liability. Their claims were dismissed as the defendant showed that they were warned.
– Where the harm caused to the entrant was as a result of the faulty workmanship of an independent contractor. Provided:
- The occupier must have acted reasonably in entrusting the work to the independent contractor.
- He must have reasonably ascertained the competence of the independent contractor before entrusting the work to him.
In O’Connor v. Swan and Edger and Carmichael contractors, a lady was in a shop when part of the ceiling fell on her and injured her. The court held the independent contractors liable for faulty workmanship. See also; Billings and sons v. Riden.
– Consent of the plaintiff (volenti non fit injuria). In Siddorn V Patel (2007) where the plaintiff climbed unto the defendant’s garage roof and fell while dancing on the roof. The court held that the law only applied to dangers due to the state of the premises and in this case, the premises was safe it was the plaintiff that went to the roof and started dancing. In Tomlinson V Congleton Borough Council, concerned a lake in a public park where there was a warning “no swimming”. The plaintiff still went ahead to swim and injure himself because he dived into the shallow part. His claim failed as there was sufficient warning. See also Titchener V British Railway Board.
Other defences include; Contributory negligence See Revill V Newbery, Fault of the plaintiff. Roles v. Nathan, Act of nature, Exclusion of liability maybe statutory or otherwise.