About a year ago, an argument struck out in class between a highly acclaimed professor and a brave student. What was interesting was that despite the professor authoritatively stating that the student’s position was wrong, the student never backed down, truly believing in what he was saying. The argument concerned the contentious topic of occupier’s liability, otherwise known as negligence in relation to premises.
The student’s question was: what category of entrant could be assigned to a person who enters a bank? The question in its raw form is vague, begging for the most popular answer in the legal field: it depends. However, as details to the question were gradually added by both professor and student, the categories of entrants were narrowed down to contractual visitor and invitee, with the student claiming one category, and the professor the other category, respectively.
Before we get to the details added to the question, as well as its analysis, it is necessary to lay down the law on negligence as it relates to premises.
As noted by McDonald and Leigh in their article ‘The law of Occupier’s liability and the need for reform in Canada’, “occupiers’ liability” is a branch of the law of negligence which is concerned with the liability of occupiers of premises toward entrants upon their premises. The duty owed by an occupier of premises to an entrant depends on the character of the entrant under consideration. Liability is determined mechanically in accordance with the formulae propounded by Justice Willes in Indermaur v. Dames. In general, the category of the entrant is first determined and then a precise duty, based on the entrant’s determined category, is applied to the facts. Liability is then imposed by deciding whether, in the circumstances, the occupier has fulfilled the precise duty imposed on him based on the category of entrant.
Professor Kumado, in his book Introduction to the Law of Torts in Ghana notes that the law draws a distinction between lawful and unlawful visitors. The term, “lawful visitors,” covers four categories of entrants: contractual visitors; invitees; licensees; and persons entering as of right. The unlawful visitor is the trespasser.
An occupier is a person who is in legal possession of premises, through ownership or lease, and has the power to exclude all other persons from the premises.
Contractual visitors are persons who enter the premises in pursuance of a contract. The nature and extent of the occupier’s obligations in relation to the safety of the premises will be a matter of construction from the contract. If the contract has no provision on the safety of the premises, a term is implied into the contract, that the premises are safe for the purposes contemplated by the parties. In Maclenan v. Segar, the plaintiff claimed damages from the defendant, as a result of a fire outbreak at the defendant’s hotel, while the plaintiff was staying there as a guest. The fire resulted from the absence of reasonable skill and care on the part of those who carried out a kitchen fire scheme earlier and the defendant was negligent in not making further inquiry than he did after a previous fire outbreak. It was held that, by the contractual relationship existing between an innkeeper (in this case, the occupier) and a guest (visitor or entrant), there was an implied warranty by the keeper that the hotel premises were, for the purpose of personal use by the guests, as safe as reasonable care and skill on the part of anyone could make them. The defendant was, therefore, liable to the plaintiff.
Accordingly, the duty owed is that an occupier warrants that his premises are as safe, for the purposes of the contract, as reasonable care and skill on the part of anyone can make them. However, where the occupier could not have discovered the defect, even by the exercise of reasonable care, there is no liability. The occupier is not entitled to say in his defense that the defect was an open danger which was obvious to all.
The above duty is owed in respect of the interior of premises. In Bell v Travco Hotels, Lords Goddard and Singleton felt that the principle of duty of care of an occupier to contractual visitors was relevant only to the interior of premises, and it was held that, for the exterior, the occupier’s duty is to see that is was just reasonably safe. However, Charles Worth and Professor Kumado have argued that the principle should be the same for both exterior and interior of premises. Premises should be taken as a whole, with both the internal and external parts. The difference in the liability should only depend on the character of the entrant.
The next category of entrants is the invitee. An invitee is a person who enters the premises for a purpose in which the entrant and the occupier have a mutual economic, material or business interest. This category deals mostly with mutual gain and benefit between the entrant and the occupier. In the case of Indemaur v. Dames, the plaintiff, a gas fitter employed by a patentee, went to the defendant’s premises to examine several burners and to test new apparatus which had been fixed on the defendant’s premises. While doing so, he fell through a hole accidentally, without any fault or negligence on his part and was injured. The hole was used by the defendant in connection with his sugar business. It was held that, since the plaintiff was on the defendant’s premises on lawful business, in the course of fulfilling a contract in which he or his employer and the defendant both had an interest and the hole was from its nature unreasonably dangerous to persons, the defendant was guilty of a breach of duty towards him.
The duty owed by an occupier to an invitee is the same as the duty an occupier owes to a visitor as of right. A visitor as of right has a right to enter the premises. That right is provided by law. Examples of visitors as of right include meter-readers, policemen, inspectors and other authorities from public institutions.
Thus, the duty is that an occupier must take reasonable care to prevent injury to the invitee from unusual danger of which he knows or ought to know. Danger is unusual, if it is not customary to have such a danger in the place where it is found. As stated by Professor Kumado, the occupier must warn the invitees through notice or lighting, guarding or otherwise, to prevent injury to them. Even if there is an unusual danger, the occupier is only liable for those dangers about which he knows or ought to know. The law is that he ought to know those dangers which are discoverable by the exercise of reasonable care and skill.
However, the law only protects an invitee so long as he keeps within the limits of his invitation. If he exceeds his invitation, he may become a trespasser.
A licensee is the one who enters premises by the permission of the occupier for a social purpose. It is, therefore, generally assumed that a social guest is a licensee. A person whose presence is only tolerated is also a licensee. The duty of the occupier is to warn the licensee of concealed dangers actually known to him and not known to the licensee or obvious to him. So, unless there is a hidden trap, there is no duty. If the danger is obvious, the licensee will fail because no duty of care is owed him. If a reasonable man using reasonable care would have seen it, then the danger is obvious. Per the case of Lowery v. Walker, once permission has been given to people to use the premises, the occupier has to warn them of any new danger created by him. However, if a danger is not known to an occupier then no duty is owed by him as was held in Morgan v. Girls’ Society.
A trespasser, the only entrant under the category of ‘unlawful visitors’, has no right or permission to enter the occupier’s land. His presence might not be known and if it is then the occupier does not consent to it. The law, as stated in Addie v Dumbreck, is that, generally, no duty is owed to the trespasser, but deliberate harm should not be done to him. But if the trespasser’s presence is known, as in Excelsior Wire Rope Co. v. Callan, the occupier must refrain from doing anything with reckless disregard of his presence.
The law was modified in the famous case of Videan v British Transport Commission to state that, an occupier owes a duty not to injure trespassers whose presence was known or was reasonably foreseeable.
Depending on the occupier’s knowledge, skills and resources the occupier may owe a duty of common humanity, to take measure to prevent entry of the trespassers whose presence is reasonably anticipated or to make the premises safe for their occupation. Cases covering the duty of common humanity include Herrington v British Railway Board and Pannett v. McGuiness & Co.
We can now get back to the issue at hand, being, what category of entrant could be assigned to a person who enters a bank? As was already stated, the question in such form is vague, hence, details were added by the student. For the sake of argument, we will assume that the occupier is the bank. This means that it only necessary to put the entrant into a category, in order find out the liability that might be owed by the bank, in the event that the entrant suffers any harm whilst on the bank premises.
Supposing the entrant entered the bank for the sole purpose of using the ATM, without having any other connection to the bank. In this case, it is most likely that the entrant would be categorized as an invitee and that was a consensus reached to by both professor and student. This is because being a place opened for the public, the entrant is prima facie a lawful visitor, and withdrawing money form the bank’s ATM creates a community of interest between the bank and the entrant which characterizes the invitor-invitee relationship. Whilst the entrant receives his money by using the ATM, the bank also gets some financial benefit in a percentage from the transaction.
Supposing, however, that the entrant has an account with the bank and enters its premises to seek advice on investment, how then can we classify this entrant? The student’s argument was that the entrant could be classified as a contractual visitor, rather than an invitee, which was the position the professor held. The distinction is important, because the classification of the entrant is what imposes specific duties and liabilities on the occupier of the premises, in the event that harm befalls the entrant, whilst he or she is on the premises.
A contractual visitor enters the premises in pursuance of a contract. ‘In pursuance of’ is defined by the Merriam-Webster Dictionary to mean: in order to do something or to do what is required by something. Accordingly, a contractual visitor enters the premises in fulfilment or execution of a contract, such as a worker contracted by the occupier of premises to do some works on the premises. The worker is required by the contract to be on the premises at a particular time in order perform the contract. The professor argued that an entrant’s contract with a bank, in which he has an account, does not require the entrant to go to that particular bank or positively perform any action, and thus, the entrant could only be an invitee.
However, if we go by the reasoning that a contractual visitor is necessarily meant to be tied down by the contract in respect of time or location, the case of Maclenan v. Segar would be deemed wrongly decided. In that case, as already discussed, the entrant was a guest at a hotel and was classified as a contractual visitor. However, after payment was made by her and the hotel room and services provided, there was no obligation on her to stay at that particular hotel, do any other positive action or be there at specified times. She was still considered a contractual visitor, rather than an invitee.
Moreover, it is possible to also give the counter-argument, as noted by the student, that the only reason the entrant goes to that specific bank is because he has an account there and he is there because of that contract, and considers that bank to be his bank. It is also submitted that when an individual entrusts his money to a particular bank, a contract is created between the individual and the bank, whereby, the bank has a duty imposed by the contract to maintain the financial account of the individual and allow certain transactions on it, such as withdrawals and deposits. On the other hand, the individual has a duty imposed on him to pay small charges to the bank monthly or yearly for its services. Consequently, there is an effective contract and it is because of this contract that the individual can say ‘this is my bank, where else would I go to for investment advice, or other services concerning my money?’
It has been also stated that, in order to sustain an invitor-invitee relationship, it must be shown that the occupier derives some material benefit from the entrant’s presence, directly or indirectly. It would be difficult to find the actual benefit the bank would get if the entrant’s only business in the bank, where he suffers harm, is to seek investment advice or find out the state of his accounts.
This difficulty in classification also appears in the differentiation between a licensee and invitee. Considerable hardship was caused by the decision of the House of Lords in Fairman v. Perpetual Building Society, where it was held that a tenant’s lodger was only a licensee of the landlord. The decision has been criticized by the Law Reform Committee on the basis that a landlord should be held to have a material interest in the use of means of access by the tenant’s guests. The Fairman case was later followed by the House of Lords in Jacobs v. London County Council, where it was held that the plaintiff, in crossing a forecourt to do business in a chemist’s shop leased by the defendant, was only a licensee of the defendant on the forecourt, which was under the defendant’s occupation and control.
Therefore, it is submitted that there is a very thin line between the categories of entrants in the law on negligence in relation to premises. A slight change, or addition to facts, could easily change the occupier’s duties and liabilities to the entrant on whom harm has befallen on the premises. Consequently, the law remains unclear and vague, whereby two differing positions can have convincing legal authorities.
Herbert Krapa in his article ‘The duties of an occupier to entrants: when does the danger cease to be dangerous?’ focuses on the classifications of invitees and licensees. He argues that they should be abolished in Ghana, as they were abolished in England by the Occupiers’ Liability Act, 1957. It is submitted that statutory intervention is necessary not only in terms of the classifications of invitees and licensees, but also in terms of the whole classifications approach in the law on negligence in relation to premises. The Common Law classification of entrants approach has been outdated for centuries. It is time for Ghana’s legislature to pass an Act which would, once and for all, settle the law on the liability of an occupier of premises for damage suffered by an entrant to the premises.