at least we consider it settled law, that he, using reasonable care on his part for his own safety is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows, or ought to know, and that where there is evidence of neglect the question whether such reasonable care has been taken by lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer must be determined by a jury as a matter of fact."

Unusual Danger.—The duty thus resting upon the occupier with respect to those who resort to his premises upon his invitation, express or implied, from the fact that they come on business in which he is interested is to use reasonable care to prevent damage from unusual danger which he knows, or ought to know. The duty extends not to all latent dangers existing on the premises, but merely to those which are more or less concealed or unusual, and which the invitee would not expect to find on the premises. As it is often expressed, the duty is not to make the premises safe, but only to prevent injuries from "traps" or concealed dangers existing on the premises. "A trap is a figure of speech, not a formula. It involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger

trap is a relative term." The term "unusual danger" has been interpreted as meaning danger unusual to the place and the person injured.*

Dangers Obvious or Known.-As to obvious dangers the invitee must protect himself. The duty of the occupier is confined to protecting the invitee by warnings and precautions relating to the existence of any concealed dangers to which he is exposed by reason of the state of the premises. It follows that if the danger is patent to all who come on the premises, or if the invitee is familiar with the premises and has knowledge of the danger he cannot recover against the occupier, for in such case the danger is not "unusual." In Cavalier v. Pope, it was said that "one of the essential facts necessary to bring a case within the principle (of Indermaur v. Dames), is that the injured person must not have had knowledge or notice of the existence of the danger through which he has suffered." "In such a case the true maxim seems to be scienti non fit injuria," and so a

e.g., Durant v. Ontario & Minnesota Power Co. (1917), 41 Ont. L. R. 130.

Latham v. Johnson, [1913] 1 K. B. at 415.

See discussion by Phillimore, J., in Norman v. Great Western Ry., [1915] 1 K. B. at p. 596.

1906, [A. C.] at p. 432. See also Despointes v. Almond (1913), 18 B. C. R. 578, where the injury was caused by a man falling in an elevator shaft. The action failed because the injured person had knowledge of the existence of the danger.

Per Atkins, J., in Lucy v. Bawden, [1914] 2 K. B. 318.

landlord has been held not liable for an injury sustained by a child of his tenant falling through the railing on the front door-steps. The fact that one of the upright bars was lacking from the railing was obvious and there was therefore no "trap." Similarly a railway company has been held not liable where it allowed an entrance to its station to become dangerous to its passengers because of an accumulation of snow and ice, the dangerous condition of the steps being obvious to all.s

It is not, however, essential that the danger be patent to the world; the occupier will escape if it was in fact known to the person injured. A tenant who is aware of a defect in a stairway and is later injured on it cannot complain; because "if there was no concealment, or the danger was in fact known to the invitee, there was no trap as far as concerned that particular invitee." This point is well illustrated by cases where persons enter or walk about on premises in the dark10 for, as has been said, "if a staircase is dark, a person using it must obviously be aware that it is in such condition; whereas, in the case of a person using a staircase which is out of repair may not be obvious to him that it is so.'

9911

. . it

Warning. The duty of the occupier of premises to persons coming thereon by invitation is not necessarily to make the place reasonably safe; he has the alternative course open to him of giving proper notice of the unusual danger; and if he does, he cannot be held guilty of negligence with regard to safeguarding his visitor from danger. In the absence of special information of a specific danger, an invitee is entitled to regard the usual tacit business invitation as one to visit the premises in the condition in which premises of that nature usually are if reasonably kept as such, at the time he visits them.12

Constructive Knowledge of Dangers by Invitor.-An invitee "would be entitled to recover if he satisfied the jury that his injury was the result of being exposed to a concealed danger of which defendant knew, or ought to have been aware, and of which he himself had no knowledge or notice."13 That is, the invitor must use reasonable care to prevent damage from unusual dangers of which

Dobson v. Horsley, [1915] 1 K. B. 624; Lucy v. Bawden, supra; Norman v. Great Western Railway Company, [1915] 1 K. B. 584.

Brackley v. Midland Railway Co., [1916] 114 L. T. 1150 (C.A.); 85 L. J. K. B. 1596.

9 Groves v. Western Mansions Ltd. (1916), 33 T. L. R. 76 at p. 77; Keech v. Sandwich (1915), 22 D. L. R. 784; Pittzen v. Shokluk (1922), 60 D. L. R. 313.

10 Lewis v. Ronald (1909), 26 T. L. R. 30; Huggett v. Miers, [1908] 2 K. B. 278; Wilkinson v. Fairrie (1862), 1 H. & C. 633.

11 Huggett v. Miers, supra, per Fletcher Moulton, L.J.

12 The South Australian Company v. Richardson, 20 C. L. R. (Austr.) 181,

9 Brit. R. C. 52; Pittzen v. Shokluk (1922), 60 D. L. R. 313.

13 Elliott v. Roberts, [1916] 2 K. B. at 527; Cf. Norman v. Great Western Ry. Co., [1915] 1 K. B. 584.

he actually knows or ought to know. The effect of the decisions is to fix the occupier with constructive knowledge of all unusual dangers, the existence of which would be revealed by the exercise of reasonable care and skill. “The expression ought to have been aware' must be explained, and after explanation it seems to me to mean would have known but for the failure to exercise reasonable care and skill, i.e., but for negligence." Thus, the occupier will be liable for injury caused by a defect easily discoverable upon examination;15 but not where the defect is a latent one.16

Independent Contractors.-An occupier does not discharge his duty to invitees by the mere employment of independent contractors and it is no defence to him that the injury was caused by hidden dangers resulting from work or appliances being done or used or structures erected on the premises under the control of independent contractors.17 It may be noted also that independent contractors or other persons who are not occupiers who create a hidden danger on the premises of another are liable under the rule in Indermaur v. Dames.18

Who are Invitees.-The duty in Indermaur v. Dames applies to all persons who come on the premises upon the invitation, express or implied, of the occupier. This implied invitation is inferred from the fact that a person comes upon the premises upon any business which concerns the occupier, or in which he has any interest whether direct or indirect. Customers who come to the occupier's store,19 or teamsters who come to deliver parcels,20 or persons who come to collect money from the occupier21 are clearly invitees, inasmuch as the occupier is directly concerned in their presence. But it is sufficient that a person is on the premises in the ordinary course of business, or upon business in which the occupier has any interest however indirect, and it is immaterial that the occupier gets no apparent benefit from his coming. Thus a dock company has been held liable for injuries sustained on a dock by persons seeking to get on board a ship moored there, the dock company receiving payment from the owner of the ship to provide. access to it.22 A railway or steamship company owes this duty not only

Cole v. De Trafford, [1918] 2 K. B. 523 at 528.

15 Marney v. Scott, [1899] 1 Q. B. 986; Smith v. Steele (1875). L. R. 10 Q. B. 125; Wright v. Lefever (1903), 51 W. R. 149 (C.A.).

18 Readhead v. Midland Ry. (1869), L. R. 4 Q. B. 379.

17 Marney v. Scott, [1899] 1 Q. B. 986; Valiquette v. Fraser (1907), 39 S. C. R. 1: Francis v. Cockrell (1870), L. R. 5 Q. B. 501; Stewart v. Cobalt (1909), 19 Ont. L. R. 667; Welsh v. Canterbury Paragon Ltd. (1894), 10 T. L. R. 478: Cox v. Coulson, [1910] 2 K. B. 177; Kimber v. Gas Light Co., [1918] 1 K. B. 439 (liability of independent contractor).

13 Corby v. Hill (1858), 4 C. B. N. S. 556; Kimber v. Gas Light Co., [1918]

1 K. B. 439; Dom. Gas Co. v. Collins, [1909] A. C. 640.

19 Mitchell v. Johnstone Walker Ltd. (1919), 47 D. L. R. 293.

20 Brebner v. The King (1913), 14 Can. Ex. R. 242; Despointes v. Almond (1913), 18 B. C. R. 578.

"Pritchard v. Peto, [1917] 2 K. B. 173.

22 Smith v. London Docks Co. (1868), L. K. 3 C. P. 326.

to the passengers who come to a station or pier to embark, but also to those who come there to assist or greet passengers.23 This duty is incident to the possession of any premises, structure, vehicle or thing which persons are invited to use for themselves or for the storage or carriage of their goods or animals2 and to dangers which arise not merely out of the condition of the land or buildings but also to those which arise from the use of all chattels, machinery, or appliances thereon,25 even though they are not in the immediate control of the occupier. The invitation protects the invitee from all hidden dangers arising from the use of the premises in the natural way. In Heaven v. Pender?" the plaintiff was employed by the owner of a ship at a dock to paint the ship and was injured by the collapse of a staging supplied by the dock owners. The dock owners were held liable, although the staging was not in their control, on the principle that persons working on the ship"must be considered as invited by the dock owner to use the dock and all appliances provided by the dockowners as incident to the use of the dock." So, where a lavatory was supplied by a barber for the use of his customers and he allowed one seeking to use it to enter a stairway which was unlighted and such as to constitute a concealed danger or trap he was not permitted to shield himself by proving that the stairway and lavatory were in fact on different premises and not under his control. The invitation to use the shop included an invitation to use the lavatory which was, so far as the plaintiff knew, part of the premises.27

Extent of Invitation.-The protection given to an invitee by the rule in Indermaur v. Dames only extends to him while he is on that part of the premises to which he is invited, or to which it is in the interest of the invitor that he should go, and does not apply where he goes on another part not included in the invitation. "The liability of the occupier is only commensurate with the extent of the invitation."28 Thus in Walker v. Midland Ry. Co.,29 a guest at a hotel got up in the night to go to the toilet-room, but entered another room by mistake in the dark and fell down a lift. It was held that while he was rightfully on the premises, the duty of taking care of him was "limited to those places into which guests may reasonably be supposed to be likely to go,

23 York v. Canada Atlantic S.S. Co. (1893), 22 Can. S. C. R. 167; Holmes v. North Eastern Ry., L. R. 4 Ex. 254; L. R. 6 Ex. 123; Wright v. London Ry. (1876), 1 Q. B. D. 252; Watkins v. Great West Ry. (1877), 37 L. T. N. S. 193; Brackley v. Midland Ry. Co., supra.

24 Moffat v. Bateman (1869), L. R. 3 P. C. 115; Elliott v. Hall (1885), 15 Q. B. D. 315; Marney v. Scott, [1899] 1 Q. B. 986; Gunn v. C. P. R. (1912), 1 D. L. R. 232; Durant v. Ontario and Minnesota Power Co. (1917), 41 O. Ĺ. R. 130; Pollock on Torts, 335.

25 Valiquette v. Fraser (1907), 39 S. C. R..

28 (1883), 11 Q. B. D. 503.

"McCallum v. Hemphill (1920), 50 D. L. R. 311.

28 21 Halsbury, 390.

29 2 T. L. R. 450; Mason v. Langford (1888), 4 T. L. R. 407.

in the belief, reasonably entertained, that they are invited or entitled to do so." On the same principle in an Ontario case3° it was held that the owner of a railway and traffic bridge, one part of which was used for railway traffic only, and was not floored,-(the other part being fenced off from the railway portion and used for passage of persons and vehicles, a small charge being made for such use) was not liable for the death of an intoxicated person, who in order to escape payment of the charge attempted to cross on the railway portion of the bridge, and fell through the bridge. The implied invitation to him was merely to use the footpath and did not include the railway part. Similarly the invitation is confined to such use of the premises as is contemplated by the invitor; and so a landlord is not liable if a tenant falls through an unrailed opening of a fire-escape while drying clothes thereon.31

Dangerous Activities on Premises. It would seem that the duty to an invitee is not confined to preventing damage from the physical condition of the land and structures but also extends to protection from all unusual dangers to which the invitee is exposed while on the premises and which are due to some work or activity on the premises. Thus a theatre owner has been held to be bound to use reasonable care to prevent a spectator from being exposed to any unusual danger arising out of the performance of a play, as, for example, danger from a shot fired by an actor on the stage.32 It is no defence that the danger was not created by the defendant and was not actually existing on his premises but was caused by the dangerous condition of neighboring premises, of which condition, however, defendant was aware. In an Alberta case a customer recovered for injuries sustained while in the defendant's shop on business from the collapse of an adjoining wall on a neighbor's land, where the defendant knew of the impending danger and failed to warn the customer, or to exclude the customer from that part of the store which was in the danger zone.34

33

II. Duty to Licensees.

Rule in Gautret v. Edgerton. To persons who come upon premises without the occupier's invitation, express or implied, but merely by the gratuitous permission of the occupier and upon business which does not

* Walsh v. International Bridge Co. (1919), 45 D. L. R. 701. See Headford v. McClary, 21 Ont. A. R. 164; affirmed in 24 S. C. R. 291, where a workman went out of his way to look at an elevator being repaired and was held not entitled to recover.

"Thyken v. Excelsior Life Co. (1917), 34 D. L. R. 533.

Cox v. Coulson, [1916] 2 K. B. 177.

"Mitchell v. Johnstone (1919), 47 D. L. R. 293; [1919] 3 W. W. R. 24; Cf. McCallum v. Hemphill (1920), 50 D. L. R. 311.

Generally as to invitees see: Levine v. Dominion Express Company, [1922] 1 W. W. R. 1143; Smith v. Mason, [1921] 2 W. W. R. 614; Fonseca v. Lake Milling Company (1905), 1 W. L. R. 553; "Duty of Invitors," 32 L. Q. R. 255.