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It is not uncommon for people to get into trouble or get hurt in one way or another. But what if it happens when the person is on someone else’s premise, especially if the injured is a child or minor?

The Occupier's Liability Act of 1957 and the Occupier's Liability Act of 1984 are two statutes that regulate an occupier's obligation or duty to lawful and uninvited visitors, respectively. An occupier is a person who is either the owner of the premise or a person who holds rights over the property be that temporary as well, such as tenants, employee etc. The term premises, as defined in Section 1(3) (a) of The Occupier’s Liability Act 1957 includes both fixed and movable structures such as land, buildings, vehicles, carriages, lifts, aircrafts etc.

The occupier can either have total authority over the premise such as the land owner or occupational rights such as managers and staffs of an organization. Occupier holds the legal responsibility to take reasonable care towards the safety of the premises, so that anyone who enters into the property does not suffer any injuries. If at all, someone suffers an injury on the occupier’s property, then the occupier holds the legal liability towards the injured person unless the occupier has already met the standard of care required. There can be various kinds of dangerous premise:

• Where the defects of the property are evidently visible to both occupier and the visitor, thus the responsibility lies on both.

• Where only the owner is aware of the defect and visitor is uninformed.

• Where both are unaware ad only an expert can identify it after inspection

• Where intentionally the premise is made dangerous using materials such as glass, electric wires etc.

The degree and burden of obligation varies from circumstance to circumstance. The obligation of the occupier can be divided into three heads, they are:

• Obligation towards Visitors. Visitors can be an invitee, Licensee and anyone who holds the lawful permit to be on the premise.

• Obligation towards Trespassers. This includes people who do not hold any kind of valid permission or has entered the property illegally.

• Obligation towards Children.

This article will focus on the obligation towards children. Children are considered as unaware of even the most obvious dangers. Because of which the occupier is expected to foresee a chance of injury and take needed precaution and care so as to keep the child safe. A child may not always react or take decisions the same way as adults, thus they require safeguarding even in situations which are not harmful to adults, especially when children tend to get attracted towards dangerous objects which an adult would surely avoid.

A child can either be a visitor or a trespasser, based on which the degree of obligation will change. Age and intellect of the child is anther contributing factor to determine the obligation of occupier. In the situation of a child being a trespasser, the sole duty of the occupier is to not harm the child intentionally, such as by creating traps of any kind. That is, the occupier will not be liable if the child, while trespassing, hurts themselves on any object that is legitimately present on the premise.

For example, a child while trespassing through the neighbor’s tries to hang on a branch of a tree and the branch breaks, injuring the child. Because the occupier was unaware of the child on their property and the injury was caused by an accident, the occupier will not be held liable.

In the case of Phipps v. Rochester Corpn (1955), 1 QB 450, the 5-year-old plaintiff, alongside his 7-year-old sister went to an open construction site owned by the defendant and fractured his leg by falling into a trench. The court determined that the defendant is not accountable because the defendant certainly didn't expect minors to visit the premise and the minors strolled around the dangerous premise without guardians.

On instances where the occupier is aware of presence of children in their premise, they hold the duty to give a fair warning to the children, pointing out the dangers present and take necessary care to keep them safe. This special responsibility is known as ‘Attractive Nuisance Doctrine’. This doctrine says that children can get attracted to injurious objects and they may not fully comprehend the dangers of it, so it is the duty of occupier to keep them away from it, else they will be held liable. Though the term attractive nuisance feels like a broad one, the law and precedents have created an outline to what constitutes the same. Some most common ones are swimming pools, trampolines, fountains etc. the attractive nuisance has to be man-made and maintained for it to be liable. Some attractive nuisances that are not liable are ponds, cliffs, sticks, parts of house etc.

The law believes that certain dangers are obvious to children, thus they refrain themselves from going there, such as heights, fire, open pits, leashed animals, etc. This is known as "contributory negligence." If the child is not of the age to differentiate the risk, then they shall be supervised by parents or guardians, thus they bear the liability if any wrong happens. Disobedience of an adult's directions may be construed as contributory negligence on the side of a child plaintiff, amounting to reduction of the claimable damages.

In the case of Kennedy v Waterloo County Board of Education, the plaintiff Kennedy was an 18 year old school student. He was riding his motorcycle in high speed due to which lost the control and fell hitting his head on a bollard in the school premise. The plaintiff approached court asking for compensation from school for placing the bollard at an accident prone place. The court held that the school was not totally liable as the unreasonable speed at which Kennedy rode the motorcycle also contributed to the accident, other than the fact that school students are less cautious and experienced, unlike adults. Thus the school board was held only 25% liable for the injury and rest was Kennedy’s negligence.

Similarly, in Walford vs. Jacuzzi Canada Ltd., the 15-year-old plaintiff was warned by her mother not to go headfirst in a waterslide, which she disregarded. The pool at the end of the water slide was shallow, because of which she hurt her head. Here the court held that the plaintiff is 20% liable as she ignored the instruction of her mother. The plaintiff was accustomed to doing the same act in pools with depth and she assumed the same here. Thus the remaining liability was put of defendant as they did not give her an authoritative warning on dangers of the pool being shallow.

An occupier's commitment and responsibility to a minor or children is substantial because they are expected to injure themselves even with the smallest amount of effort. From the abovementioned cases, it is evident that the age of the minor is an important factor. In cases of negligence on the part of minors who are of reasonable intellect, contributory negligence is a good defence. Occupants need to foresee the most unexpected and take the utmost care in order to stay out of liability and risks when minors are involved.

This article is written by Anusree Sapna Nair, of Amity University Mumbai.

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