SECTIONS

By Musoki Kimanthi

Q. My child went to play in our neighbour’s home within our estate, but came back bloodied with a cut on the forehead. I was told that he was injured by a falling wineglass after he had pushed the cupboard where the glasses had been kept. Can I sue my neighbour for not taking care to ensure my child was safe?

A

. To the mind of anyone faced with this question the issue would be whether this child was an invitee, or it had come without permission thus a trespasser. This was the same dilemma brought out by the common law position on the question of occupier’s liability, which tended to be complicated and unsatisfactory.

One should take care to ensure visiting children will be reasonably safe while in your house. Photo/ Internet/ Standard

The liability of the occupier depended upon the classification of entrants onto the occupier’s land into three categories: Trespasser, licensee or invitee. This was necessary because the duty owed by the occupier varied depending on the status of the entrant.

Duty of care

Occupier’s liability is a field of tort law, which deals with the duty of care that those who occupy real property, either through ownership or lease, owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.

The big question before liability can be apportioned is, who is an occupier? The applicable test for the status of ‘occupier’ is the degree of occupational control. The more control one has over certain premises, the more likely he is to be considered ‘occupier’ for the purpose of occupier’s liability.

More than one person at the same time can have the status of occupier. Both tenants and licensees will be considered occupiers of property where they live. Owners of let property will be considered occupiers of those areas which they have not let by demise and over which they have retained control, such as the common staircase in apartment buildings.

Lawful visitor

Where an independent contractor has been called to carry out repairs on the property, he may also be considered an occupier if he exercises sufficient control over the premises during that time.

Visitors have been defined as persons to whom the occupier gives an invitation or permission to enter or use the premises. In other words, visitors are persons who have the express or implied permission of the occupier to be on the premises. A visitor who exceeds the occupier’s permission, for example, by going to the part of the premises where he was told not to go by the occupier, or by overstaying his welcome, will become a trespasser and may not be considered for compensation.

Other categories of people, however, may enter the premises without the occupiers’ permission but will be deemed visitors for purposes of compensation, for example, police carrying out a lawful search.

At this point we may ask; can the child in question be considered a lawful visitor? My answer would be yes, following the explanation given above.

Reasonable occupier

The neighbour, therefore, was under a common law duty of care to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe in using the premises for the purposes for which it was permitted to be there.

The standard of care an occupier is expected to meet is the standard of ‘a reasonable occupier’, no different from the usual common law negligence standard of care.

Furthermore, the law requires an occupier to be prepared for children to be less careful than adults. What may be sufficient for an adult visitor may be hopelessly inadequate for a child.

Having said the above, however, parents cannot be heard to push the responsibility of ensuring their children’s safety to their neighbours.