OCCUPIER S LIABILITY LAW AND LIBRARIES

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1 OCCUPIER S LIABILITY LAW AND LIBRARIES Dennis U Odigie, LL.M, BL Lecturer, Faculty of Law University of Benin Benin City And Emmanuel Owushi-Junior, BLS (ABU) Librarian, University Library University of Benin Benin City Legal Framework Occupier s liability may be described as the liability which the occupier of premises bears in respect of loss or injury suffered by those who lawfully come upon his premises. The term `occupier is not defined in any statute, but in legal parlance it simply denotes a person who has sufficient degree of control over premises to put him under a duty of care towards those who lawfully come unto the premises. Premises in the context of this tort include fixed or movable structure, vessel, vehicle or aircraft. In Nigeria, the applicable statutory provisions to the tort of occupier s liability are codified in some state legislation. For example, in Lagos, the applicable statute is the Law Reform (Tort) Law. 1 In other states, there is a complete absence of occupier s liability legislation. In Edo and Delta States the laws of the defunct Bendel State of Nigeria 1976 applicable in both states makes no provision for the tort. In such situation, the courts resort to common law principles. In England, the applicable statutes are the Occupier s Liability Acts of 1957 and It is instructive to note that these English legislations are not applicable in Nigeria. The common law imposes a duty of care on occupiers towards four categories of persons, namely, those who enter the premises in pursuance of a contract with the occupier, an invitee, such as a customer who comes window shopping at the premises, a licensee who comes into the premises with the occupier s implied or express warranty, and trespassers who come upon or remain on premises without the occupier s permission or authority. In Samson Ugochukwu v. Unipetrol (Nig) Plc, 2 the Supreme Court 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. In this case, the plaintiff/appellant went to buy fuel at the defendant s Marina filling station. While waiting to buy fuel, there was an explosion which injured him on the face, neck, legs and upper limbs. He sued the defendant for damages and also relied on the doctrine of res ipsa loquitur as well as section 7(3)(a) of the Lagos State Law Reform (Torts) Law of 1994 which provides: The rule so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law too an occupier of premises and his invitees or licensee would apply, to regulate the obligations of a person occupying or having control over any fixed or movable structure, including any vessel, vehicle or craft. 1 Cap 115, Laws of Lagos State [2002] 7 NWLR (Pt. 765) 14.

2 In his evidence, the plaintiff did not specify whether he was either an invitee or licensee to defendant s petrol station. He simply stated that he was a lawful visitor to the defendant s premises at the material time. Dismissing the plaintiff s claim, the court held that he was unable to prove that he was either an invitee or a licensee. In his judgment, Mohammed, JSC stated:... I agree that the court below was right in affirming the holding of the trial court that he had failed to prove that he was either an invitee or a licensee. If a visitor fails to prove that he is a licensee or invitee he is a trespasser. From the foregoing, it would appear that the contemporary statutory and judicial standpoints of the Nigerian law of occupier s liability are contradictory, or diametrically opposed to the intents and purposes of the English Occupier s Liability Act of 1957, wherein it is enough for the plaintiff to simply prove that he is a visitor at the time of the incident. One grey area that has been a source of concern to jurists and learned scholars is the yardstick for measuring the degree of control exercised by an occupier over premises. The test is obviously subjective and this gives a lot of latitude to the judge in determining what constitutes Occupier s `control over premises. In International Institute of Tropical Agriculture v. Amram Ami Amrani 3, the plaintiff/respondent sustained injuries and suffered loss of amenities of life as a result of an incident had by him while on the defendant/appellant s premises. The plaintiff claimed that the accident was caused by a deposit of sand which the defendant negligently left along its tarmac. One of the issues which arose for determination was whether the defendant was an occupier in the circumstance. In his judgment, Mukhtar, JCA stated:... occupier is termed as simply a convenient word for a person who has sufficient degree of control over premises to put him under a duty of care towards those who come lawfully unto the premises. A degree of control is prima facie sufficient if it is such that the defendant ought to realize that a failure on his part to use care may result in injury to a person coming under the premises. The defendant was held to be an occupier. In Ward v Tesco Stores Ltd 4, it was held that the defendants and their servants owed a duty to see that the floors of the store were kept clean and free from spillages so that accidents do not occur. Library operators owe a duty to ensure that the floor of the library is safe and conducive to learning. A library with slippery floor tiles, falling ceilings, filthy toilets and poor lighting system is obviously unsafe for users and could attract liability to the library authority for any injury suffered therefrom. Generally, an occupier owes no duty to trespassers. Who then is a trespasser? Harpwood 5 defined the term as:... a person whose presence on land is unknown to the occupier or, if known, is objected to by the occupier in some practical way. In England, the Occupier s Liability Act of 1984 provides for the duty owed by occupiers to persons other than visitors, in respect of injury suffered while on the premises due to the dangerous state of such premises or things done or omitted to be done on them. Section 1 (3) of the Act provides that an occupier is liable to a trespasser, if: (1) he is aware of the danger or has reasonable grounds to believe it exists; [1994] 3 NWLR (Pt. 332) 296 [1976] 1 All E.R. 219 Harpwood, Vivienne, Principles of Tort Law, 4th ed. London, Cavendish Publishing, 2000, 200.

3 (2) he knows or has reasonable grounds to believe that the other person is in the vicinity of the danger concerned, or that he may come into the vicinity of the danger (in either case whether the other has lawful authority for being in that vicinity or not); and (3) the risk is one against which in all the circumstances of the case he may reasonably be expected to offer the other some protection. The scope of an Occupier s duty under the English Act of 1984 is limited to personal injury to trespassers; no reference is made to damages to trespasser s property. In British Railways Board v. Herrington 6, Lord Diplock stated that the duty owed a trespasser would not arise until the Occupier s actual knowledge of the presence of the trespasser on the premises is proved. Implication for Libraries In Nigeria, emphasis is placed on protection of library materials, with little or no attention to safety and welfare of users. Most libraries have their exits and windows well secured by burglary proofs to prevent and forestall incidence of theft in them. No emergency exits are provided; where fire extinguishers are provided they remain dysfunctional. Dada succinctly summarised the situation thus: there is no gainsaying that, unknown to the library authorities, such a step portends great dangers to the lives of patrons for which the library may be held liable. In a possible case of stampedes, serious injuries may be caused to patrons in their various bids to rush out for safety through the controlled outlet; that in such a situation, it might prove an uphill task for the library authorities to disclaim liability for negligence. 7 Library authorities owe a duty of care to all persons who lawfully enter their premises. In this connection, the occupier must ensure that the premises are reasonably safe. A breach of this duty would attract liability to the defaulting authority. This entails that library authorities must guide against any danger arising from the state of disrepair of premises, faulty electrical installations, poorly arranged or illuminated reading and shelving areas, sanitary facilities; these should be in good working conditions for the safety of the visitors. The golden rule is that visitors are guaranteed reasonable safety in the use of library premises for the purposes for which they are permitted by the occupier. Duties to Users The common law principle of occupier s liability was clearly stated by Lord Denning in Wheat v. Lacon & Co. Ltd., 8 as follows: where a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an occupier is under a duty to his visitor to use reasonable care. Applying the above law to library situations, certain facts must be proved, namely: (1) That the person who has control over premises is the occupier. In the library scene, there is no doubt that the Chief Librarian has sufficient degree of control over the library, hence he is an occupier. (2) That the person coming lawfully there is his visitor. 6 [1972] A.C Dada, T. O. The Legal and Professional Responsibilities of Law Librarian, in Ajomo, M, (ed) New Dimensions in Nigerian Law, Lagos, NIALS, 1989, [1966] A. C. 552 at 578.

4 (3) That there are other departments or facilities sharing the library building with the Chief Librarian does not absolve him of his liabilities. In Law Marca v Brooklyn Public Library, 9 an invitee was injured when he fell from an unlighted stairway. He was not a library patron as such but, was merely visiting the building to obtain information from another office housed in the library building and over which the library had control. The defendants were held liable for failure to put the premises in a reasonably safe condition for lawful visitors. If the library had taken adequate care, this incident would have been averted. (4) That liability for dangerous premises is based on occupancy or control, not on ownership. 10 A distinction must be drawn between users of public and other types of libraries (academic libraries are those of universities, polytechnics, college of education, and other institutions of higher learning, while special libraries include those found in research institutes). In the former, membership is not restricted; deserving members of the public can freely walk into the library for their services. In the latter, only registered members who are primarily members of the academic community are regarded as invitees. In Bradford v Clifton 11, the plaintiff who visited a college library building under construction was injured. In his claim for damages, the plaintiff was held to be a trespasser because he entered the campus and the construction zone without the knowledge and permission of the defendants. However, a library authority would be exonerated from liability if the injury suffered is attributed to the act of an independent contractor. Dada 12 reiterated the need to keep library buildings and facilities safe for users at all times, failing which liability would be incurred for any resultant injury in the course of use by patrons. The next issue that arises for consideration is whether users of libraries can be regarded as invitees. The term invitee is not defined by the Occupier s Liability Act. However, Black s Law Dictionary defines an invitee as follows: A person is an `invitee on land of another if (1) he enters by invitation, express or implied, (2) his entry is connected with the owner s business or with an activity the owner conducts or permits to be conducted on his land; and (3) there is mutuality of benefit to the owner. From the foregoing, it can be said that registered users of libraries are invitees, and the business of library in the context of occupier s liability would include the services rendered within the premises, such as borrowing of books, reading, photocopying. In the American case of Abolt v New York Public Library, 13 a patron visited the defendant s library for the purpose of conducting research and in the process got injured within the premises. The defendant declined liability. It was held that the plaintiff was an implied invitee; he succeeded. Injury to Children Under the common law, no distinction is drawn between liability to children and adults who come unto dangerous premises. This principle finds expression in the dictum of Farwell LJ in Lathan v R. Johnson & Nephew 14 where he stated: 9 [1939] 256 A.D N.Y.S 2D (Supra) 11 [1964] 379 S.W. 2d 249 KY. 12 Supra note 6 at p (1968) 263 AD 314 NYS 2d (141). 14 [1915] 1 KB 398, 407.

5 I am not aware of any case that imposes any greater liability on the owner towards children than towards adults: the exceptions apply to all alike and the adult is as much entitled to protection as the child. Similarly, in Stevenson v Corporation of Glasgow, 15 Hamilton LJ stated: the child must take the place as he finds it and take care of himself... The crucial question that thus arises is, how can a child take care of himself against danger when he does not have the requisite diligence to do so? More so, children are known to take delight in daring what they are specifically prohibited from doing. A convenient way of providing answers to the above is to look at liability to children for injury sustained in the use of the conventional library in one breath, and children s library in another breath. Where the premises in question is children s library, the library operators would be under a legal duty to provide necessary facilities to suit its use by children with minimal risk. The authority would be liable for injuries sustained by children who come lawfully upon such premises. It is presumed that operators of children s libraries intend to admit children users whether or not young and unaccompanied by an adult. In Bates v. Stone Parish Council, 16 the plaintiff, then three and a half years of age, was permitted by his mother to go to the children s playground, a recreational ground provided by the defendant. While at the ground, the plaintiff fell from the platform which was twelve feet high through the space between the rails and sustained injuries which resulted in permanent blindness. The defendant contended that plaintiff ought to be accompanied by a competent guardian. It was held that being a playground specially designed for children, the plaintiff did not need to be accompanied, and that the defendant was under a duty to ensure that children on the playground were as safe as in a nursery. Where the premises in question is the conventional library primarily designed for use by adults, the library authority would be under a duty to ensure that children users are accompanied by competent guardians. Warning signals should be placed to restrict the entry of children into the library premises, especially the areas which accommodate heavy duty equipment for binding books. If a child sustains injury in such premises while unaccompanied by a competent guardian, he is regarded as a trespasser. If accompanied by a competent guardian at the time of the injury, he is a licensee who in law would have a remedy against the occupier, irrespective of whether or not it is children s library. In Coated v Rawtenstal Borough Council, 17 a child of three and a quarter years old had an accident on a slide and sustained injuries. The defendant denied liability and argued that the recreation ground was provided for children of school age only and that the plaintiff was a trespasser. The court found for the plaintiff and held that the plaintiff was in the circumstances a licensee since he was accompanied by a competent guardian of fourteen at the time of the accident. Where obvious dangers are perceived by the occupier, the law places a higher duty of care towards children beyond placing warning signals to that effect. In Pannet v McGuiness, 18 a five year old child was playing on a building site where advertising boarding were burnt. The child had been warned several times along with other children to stay away. It was held that this did not absorb the defendant of liability as the defendant knew of the presence of children on the building and could have taken steps to prevent the accident. 15 [1918] SC [1954] 1 WLR [1937] 3 All ER [1972] 3 All ER 137.

6 Loss of Users Property Where a library authority provides a place for users bags, umbrellas and other personal effects, and issues disc or tally to such users as they drop these items, it is assumed that the authority had undertaken the care and custody of such items with a promise to return the same to the owner. It irrelevant that the owners of the personal effects did not pay for such undertaking and failure to return the items attracts liability. In Broadline Enterprises Ltd v. Monterey Maritime Corporation (owners of M.V. Cape Monterey), 19 the appellant s case was that on or about the 29 th July, 1981, it entrusted 100,000 bags of white crystal sugar to the respondents for shipment from Rotterdam to Apapa for delivery to the appellant for valuable consideration. On point of delivery, the respondent as common carriers and bailees failed to deliver 3,434 out of the 100,000 bags of sugar. The plaintiff/appellant sued for breach of contract and negligence for the loss of the 3,434 bags of sugar. The respondent s defence was that they carried the goods as consignees for the appellant as notified party. The trial court dismissed plaintiff/appellant s claim. On appeal by the plaintiff, the Supreme Court held the defendant/respondent liable for the loss. In his judgment, Iguh JSC stated: At all events, the law seems to me clear that whenever goods belonging to one person are unconditionally entrusted to the care of another for whatever purpose, whether gratuitously or for reward, on the clear understanding that the goods shall ultimately be returned to the owner, failure to do so raises a presumption of negligence against the offending party. Any action arising from the theft or loss of user s property against the library authority, places the burden of disproving liability on the authority. In Panalpina World Transport (Nigeria) Ltd v. N.T. Wariboko, 20 the plaintiff/respondent commenced proceedings against the defendant/appellant in the Port Harcourt High Court for the recovery of 1,053. 8s. 7d being the value of four packages of personal effects which the defendant agreed to carry from Zaria to Port Harcourt, but which were negligently lost by defendants. The trial court awarded N750 to the plaintiff for the missing goods. The defendant appealed against the judgment on the ground that the plaintiff did not prove that defendants were negligent. The Supreme Court dismissed the appeal and held that the onus was on the defendants to prove that they were not negligent in the course of carriage. In his judgment, Coker JSC stated: We consider the mere fact that the defendants/appellants failed to deliver to the plaintiff the goods which they had undertaken to transport to Port Harcourt is prima facie evidence of negligence; and has the onus of disproving negligence rested on them, we cannot but agree with the learned trial judge that the onus was never discharged. However, if the library authority places a conspicuous exemption notice such as property kept at owner s risk, on the shelves where bags and other personal items are kept, the authority would likely escape liability even where it issues discs to owners of such items. This appears to be the contemporary position of the law as decided by the Supreme Court in Anyah v Imo Concorde Hotels Ltd, 21 where the defendant/respondent was held not liable to plaintiff/appellant whose car was stolen from where it was parked at the defendant s premises which bore the inscription cars parked at owner s risk. It was further held that the fact that the defendant issued disc to the plaintiff did not 19 [1995] 9 NWLR (Part 417) [1975] All NLR [2002] 18 NWLR (Part 799) 377.

7 amount to an undertaking by Defendant to ensure the safety of plaintiff s car, but to know the number of cars parked within the premises. Conclusion Occupier s liability law appears to have been taken for granted in Nigerian libraries for too long. Many library users are unaware of their rights. However, the situation appears to be changing. There is thus a compelling need for legal minds to be involved in the guidance of library authorities in relation to the provision of safe measures in library practices. Statutory enactments on the rights and protection of library users are long overdue for legislation by the National and State legislative authorities. Enlightenment of library users deserves to be given its pride of place by the National Library of Nigeria and other relevant bodies. Adequate warning notices about defects need to be conspicuously placed at library premises and reading areas to serve as a guide to users. It is hoped that a pragmatic implementation of the foregoing suggestions would usher in a new dawn in the use of libraries in Nigeria.