Question 8

Neha and Sidhu will be advised to claim against Punjab Perfume House for their injuries. Their claim will be an occupier’s liability claim because it happened in the premise of Punjab Perfume House. In order to claim occupier’s liability, it must first be established that the damage as caused by the state of premise as laid down in Ogwo v Taylor. Here, both Neha and Sidhu slipped over a patch of liquid in the perfume distillation room, that would amount to the state of premise. Neha and Sidhu’s claim will be discussed separately.

The next thing to establish is whether or not the place of injury could be considered a premise under s.1(3)(a) Occupiers Liability Act (OLA) 1957, which defined premise as any fixed or moveable structure. The place of injury for both Neha and Sidhu is in the perfume distillation room which is a fixed structure in the perfume house. Another pre-requirement for Punjab Perfume House to be able to be sued is that he must the occupier. In the case of Wheat v Lacon, one is an occupier as long as he has sufficient degree of control over the premise. The facts says that the perfume house held an open day and placed signs around, its ability to do so shows that Punjab Perfume House does have the sufficient degree of control over the premise, making Punjab Perfume House the occupier.

The law governing occupier’s liability is found in two different statutes, the OLA 1957 for visitors and OLA 1984 for trespassers. In order to know where Neha’s claim will be based on, it is essential to determine whether Neha is a visitor or a trespasser. There are three ways in which a person can enter a premise as a visitor and the first one is a license like in the case of Lowery v Walker, the second and third way is a legal right under s.2(6) OLA 1957 or under a contract. Neha has a license as it was an open day and she entered as a visitor to the open day. However, a license can be limited but it must be made clear as said in Anderson v Coutts. There have been signs put up but it can be construed as a warning of danger instead of a limitation because the wordings used was “please remain within the marked pathways, danger beyond it”. That would be more of a warning of the danger instead of saying that visitors are not allowed there. It is very arguable, so if her license was not properly limited, Neha is still a visitor when she wandered into the perfume distillation room but if her license were limited then she would be a trespasser.

Visitors are defined as someone who as express or implied permission from the occupier to enter the premises in s.2(1) OLA 1957. S.2(2) OLA 1957 says that occupiers have a duty towards visitors to take such care as in all circumstances reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. Neha in the perfume distillation room slipped on a patch of slippery liquid and fell into the pool of preserved rose. In Clare v Perry, the courts sometimes take into account the behaviour reasonably expected. In that case, the claimant climbed over a wall and fell, the courts found that her behaviour was not reasonably expected and hence, the occupiers were not liable. There is nothing on the facts that says Neha was not acting as a normal visitor doing extraordinary things. Punjab Perfume House had not taken reasonable

precaution in making sure there are no slippery liquid on the floor because if someone where to be in the room, then obviously by having liquid on the floor might cause them to slip.

Punjab Perfume House may rely on the defence of warning in s.2(4)(a) OLA 1957 that says if an occupier gives sufficient warning of a danger to render visitor reasonably safe, the occupier will not be liable for any damage suffered by that danger. In Rae v Mars, the deep pit was immediately after entrance making the warning insufficient. On these facts, Punjab Perfume House may say that they have already placed warning at the entrace that says “danger beyond marked pathways”. It may not be sufficient because the act requires the warning to be directed at that danger which the occupier is trying to prevent the visitor from. Here, the warning is a very vague and wide one, hence it is most likely to be insufficient. Furthermore, Neha cannot read very well making her not able to understand the warning.

However, if her license has been limited, then she is a person who goes onto land without any kind of permission, and whose presence there is either not known to the occupier or if known, objected to. s.1(3) OLA 1984 lays down three elements to be satisfied before she can claim. The first one is that the occupier is aware of the danger or has reasonable grounds to believe that it exists. The perfume distillation room contains preserved roses soaked in alcohol, the slippery liquid could just be from that tub. If it were, Punjab Perfume House would definitely be aware.

The second one is that he knows or has reasonable grounds to believe that the trespasser is in the vicinity of danger concerned or that he may come into it. There are two ways in which one can look at this. One, which is in favour of the victim is that tt could be inferred that Punjab Perfume House does know because they put up signs advising people not to. If they didn’t believe anyone would be in there then signs would not be needed. The second one, which is in favour of the defendant, that says Punjab Perfume House having already put up signs has eliminated all possibility of a trespasser going into the perfume distillation room. In Swain v Natui Ram Puri, the occupier had already put up fence that were substantial hence there was no reasonable grounds to believe that anyone might enter and scale the roof. However, it is unlikely that that argument is going to make it because in Swain, a substantial fence were put up, here only signs were up. If Punjab Perfume House has set up barriers then perhaps, it would hold out stronger.

The third element is that the risk is one which in all circumstances of the case, the occupier may reasonably be expected to offer some protection. In simple words, the risk must be one that Punjab Perfume House can protect Neha from. On the facts, the slippery liquid could have easily been cleaned off the floor. That or the pool of preserved rose should have been fenced off instead of easily letting things fall into it. With even this element made up, Punjab Perfume House would owe Neha a duty of care.

Now that a duty of care has been established, there is a need to see what the standards are and if Punjab Perfume House has fallen below that standard to become liable to Neha. The standard required by the OLA 1984 were always meant to be the same as that of common humanity laid down in British Railway Board v Herrington. In White v St Albans City, it was held that so long as a reasonable care was taken, then the defendants will not be liable. As the standard is lower, Punjab Perfume House could easily raise warning saying that the warning put up is sufficient, in Westwood v The Post Office, it was held that even if warning was sufficient for adults, something more is required for children. Although Neha is not a child but she cannot read well meaning that she cannot understand the warning and cannot prepare herself to avoid the danger. Hence, it would be likely that Punjab Perfume House would be liable to Neha.

As for Sidhnu, because he is an employee, he would be visitor by contract under and Punjab Perfume House would have a duty of care to make sure he is safe for what he is there for. Sidhnu had also slipped on the same slippery liquid and similar to Neha’s discussion if she was a visitor, Punjab Perfume House would be liable for Sidhnu’s injury.

In conclusion, Punjab Perfume House will be liable for Neha’s damage whether she is a visitor or trespasser also also for Sidhnu because the premise should be reasonably safe for him to work there. Punjab Perfume House does not seem to have an applicable defence to exonerate him from the liability to Neha and Sidhnu.