Effect of knowledge of danger. Smith v. shipowner, was injured through the dangerous condition of the staging, and was held by the Court of Appeal to have a good cause of action against the dock company in accordance with the rule in Indermaur v. Dames. 3. A difficult question relates to the effect of the circumstance that the danger is known to the person entering upon the premises. Can the plaintiff complain of injury which he has received from dangers which he knowingly faced, or is the duty of the occupier limited to dangers unknown to him who enters on the premises? In other words, is the duty of the occupier a duty to make the premises safe, or merely a duty to give warning that they are not safe? It is settled by the decision of the House of Lords in the leading case of Smith V. Baker that mere knowledge of the danger is not (at least in large and important classes of instances) any defence at all per se. In this case a workman in a quarry recovered damages from his employers for injury received from the fall of a stone, although he had continued to work in the quarry with full knowledge of the danger to which he was exposed through the negligent practice of the defendants in swinging stones over the quarrymen's heads by means of a crane. So in Williams v. Birmingham Battery Co. 5 the defendants were held responsible by the Court of Appeal for the death of a workman who had fallen from a scaffolding which he had used with full knowledge of its dangerous character. So in Lax v. Corporation of Darlington the plaintiff recovered damages for the loss of a cow, which he had brought to the defendants' market and which had been injured by certain spiked railings, which, as the plaintiff well knew, existed in the market place. Although a knowledge or warning of the danger is not in itself any bar to the action, it may nevertheless operate in at least two ways so as to exclude the liability of the occupier: (a) It may be sufficient evidence of an implied agreement by the plaintiff to take the risk upon himself: that is to say, to excuse the defendant from the performance of his duty to make the premises safe. Volenti non fit injuria. Whether such an agreement really exists, however, is a question of fact for the jury; to know of a breach of duty is not necessarily to excuse it.7 (b) Knowledge of a danger may be evidence of contributory negligence on the part of the person injured by it. Acts which would be reasonable on the part of a visitor ignorant of a danger may be acts of contributory negligence on the part of one who knows of it. 8 9 to the rule in 4. The rule in Indermaur v. Dames is subject to two impor- Exceptions tant exceptions. In the first place there is a class of cases in Indermaur v. which the duty of the occupier is greater than that established Dames by the general rule, and in the second place there is a class of cases in which the duty is less. The first of these exceptions may be conveniently referred to as the rule in Francis v. Cockrell 10 and the second as the rule in Gautret v. Egerton. 11 We proceed to consider these rules in the succeeding sections. • Smith v. Baker (1891) A.C. 325; Williams v. Birmingham Battery Co. (1899) 2 Q.B. 338. * All this matter has been more fully discussed in connection with the maxim Volenti non fit injuria. Supra, p. 48. In Griffiths v. London & St. Katharine's Docks Co. (1884) 13 Q.B.D. 259, the opinion is expressed that a servant who suffers injury through the unsafe condition of his master's premises must prove both that his master knew of the danger, and that he himself was ignorant of it. It seems impossible now to maintain either branch of this rule. See Lloyd v. Woolland Brothers (1902) 87 L.T. 73. It is possible that the principle of Smith v. Baker (1891) A.C. 325, applies not universally, but only to those plaintiffs who enter on the premises by right (for example, under a contract, as in the case of master and servant), and that in the case of those who enter not of right, but only by leave and licence (for example, a customer entering a shop), knowledge of the danger is per se an absolute bar to an action. It may be that he who enters by permission only has no right that the premises shall be safe, but has merely a right to be warned of dangers; whereas he who enters as of right has an accessory right that after entering he shall not be exposed to danger, and his knowledge of a breach of the occupier's duty in this matter does not in itself excuse it, but is merely evidence for a jury of an implied agreement to that effect. This distinction seems sound in principle, but it considerably compli cates the law, and the authorities are not sufficient to show whether it exists. See Clerk & Lindsell on Torts, p. 482, 4th ed. 10 (1870) L.R. 5 Q.B. 184, 501. 11 (1867) L.R. 2 C.P. 371. Warranty of safety. Francis v. Cockrell. § 121.-Liability of Occupiers on a Warranty of Safety. The Rule in Francis v. Cockrell.1 1. When the occupier of premises agrees for valuable consideration that some other person shall have a right to enter and use them for some specific purpose, the contract contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. He is responsible, therefore, not merely for any dangers due to the negligence of himself or his servants, but also for those which are due to that of independent contractors or other persons. 2. This is the principle established in the leading case of Francis v. Cockrell. 1 The defendant, in occupation of a racecourse, contracted with a builder for the erection of a stand thereon. The plaintiff purchased from the defendant a ticket entitling him to enter the stand to see the races. Through the negligence of the contractor the stand was improperly constructed, and during the races it fell and injured the plaintiff who was upon it. It was held by the Court of Exchequer Chamber that the defendant was liable, although guilty of no negligence, by virtue of the implied warranty of safety contained in his contract with the plaintiff. "First there is the principle," says Kelly, C.B., 2" which I hold to be well established by all the authorities, that one who lets for hire or engages for the supply of any article or thing, whether it be a carriage to be ridden in, or a bridge to be passed over, or a stand from which to view a steeplechase, or a place to be sat in by anybody who is to witness a spectacle, for a pecuniary consideration, does warrant and does impliedly contract that the article or thing is reasonably fit for the purpose to which it is to be applied; but secondly he does not contract against any unseen and unknown defect which cannot be discovered or which may be said to be undiscoverable by any ordinary or reasonable means of inquiry and examination." is no war 3. It has sometimes been suggested that this implied Where there warranty of safety is the general rule as to the liability of ranty. occupiers, and not merely a special exception derived from the law of contract. 3 There seems, however, to be no sufficient authority for any such generalisation of the rule in Francis v. Cockrell. There is no suggestion of any such liability in Indermaur v. Dames or in the other cases which form the foundation of this part of the law. It is submitted, therefore, that a person who enters lawfully, but not in pursuance of any contract by which for valuable consideration he has purchased a right to the use of the premises, has not the protection of any such rule of absolute liability, but has merely the right that due care shall be taken for his safety by the occupier and his servants. A master does not warrant to his servant that the premises are safe; still less does a shopkeeper enter into any such warranty with his customers. § 122.—Liability of Occupiers to Bare Licensees. licensees. 1. There is a certain class of persons distinguished as Duty to bare bare licensees or mere licensees-to whom an occupier owes no such duty of care as is established by the rule in Indermaur v. Dames. His only duty is to give warning of any concealed danger of which he actually knows. As the rule is often stated, his only duty is to refrain from knowingly leading the plaintiff into a trap by allowing him to enter without warning premises which he, the occupier, actually knows to be unsafe. But he is under no duty to make them safe, or even to ascertain whether they are safe or not. Presumably, however, the knowledge of any servant to whom the occupier has delegated the performance of his duty to the plaintiff is equivalent to the knowledge of the occupier himself. 2 3 See Marney v. Scott (1899) 1 Q.B. p. 989, per Bigham, J. (1866) L.R. 1 C.P. 274; 2 C.P. 311. 1 (1867) L.R. 2 C.P. 371. 2 Cf. the rules as to proof of scienter in the case of dangerous animals. Infra, § 126. Who are bare licensees. Gautret v. A concealed danger within the meaning of this rule of disclosure is a danger which is unknown to the plaintiff, and is of such a nature that a reasonably prudent man in the position of the plaintiff would not anticipate it or guard against it. 2. What classes of persons, then, are bare licensees within the meaning of this rule? A bare licensee may be defined as a person who enters on the premises by the permission of the occupier, granted gratuitously in a matter in which the occupier has himself no interest. The typical example is a gratuitous license to use a way across the occupier's land for purposes which exclusively concern the licensee himself. He who asks and receives such a favour is deemed to enter on the terms that he agrees to take the premises as he finds them. He is to look after himself, and can make no claim to be looked after by the occupier. In order that a person shall be deemed a bare licensee two conditions, therefore, must be fulfilled : (a) The license must be gratuitous: if he pays for his right to enter, he purchases at the same time a right of safety. (b) The license must be granted in a matter in which the occupier has himself no interest. If there is a common interest-if the permission is a matter of business, and not a matter of grace and favour-the person so entering is entitled to safety, even though the permission granted to him is gratuitous. 3. The leading case as to the rights of bare licensees is Gautret v. Egerton, 3 in which it was held that the defendants, who had gratuitously permitted the public to use a way through certain docks, were not bound to make this way safe, or liable to any one who suffered damage in consequence of its dangerous condition. "If I dedicate a way to the public," says Willes, J., 4 "which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences, but if I do nothing I am not." So in Hounsell v. Smyth the defendants were the occupiers of certain waste lands on which there was an unfenced quarry, and they tacitly 3 (1867) L.R. 2 C.P. 371. 4 At p. 373. |