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Prior to passing of the Occupiers Liability Act, 1957 the position was governed by the common law rules. Common law classified the lawful visitors into two categories: invitees and licensees, laid down separate rules for obligation towards each one of them.

When the occupier of the premises and the visitors had a common interest or the occupier had an interest in the visit of the visitor, the visitor was known as an ‘invitee’. When the occupier had no such interest, the visitor was known as ‘licensee’. A customer who entered a shop was an invitee even though he actually did not purchase anything, but a guest who had been invited for a dinner was a licensee.

Duty towards an invitee

The occupier was supposed to take reasonable care to prevent any damage to the invitee from any unusual danger on his premises, which he knew or ought to have known. Thus, towards an invitee, the occupier’s liability was for loss caused by an unusual danger not only in respect of which the occupier was actually aware, but also of such danger which he ought to have known.

In the case Indermaur vs. Dames, 1866, the plaintiff, who was a gas fitter, entered the defendant’s premises for testing certain gas fittings there. While doing so, he fell from an unfenced opening on the upper floor and was injured. The plaintiff, being an invitee on those premises, the defendant was held liable for the injury caused to him.

In Cates vs. Mongini Bros., 1971, the plaintiff went to the defendant’s restaurant to take lunch and took a seat under a ceiling fan. The fan fell on her whereby she was injured. In an action for negligence against the defendant, it was found that the fan had fallen due to the latent defect in the metal of the suspension rod and the same could not have been discovered by reasonable care on the part of the defendants. There being no negligence on the part of the defendants, they were held not liable.

Duty towards a licensee

It has been noted above that a licensee is a person who enters the premises, with the express or implied permission of the occupier, for his own purpose rather than for the occupier’s interest. The occupier had a duty to give due warning of any expected dangers not known to him. He was also not liable for any danger which was obvious and the licensee must have appreciated the same.

In Fairman vs. Perpetual Investment Building Society, 1923, the plaintiff went to stay with her sister in a building owned by the defendant and let out to the sister’s husband. The defendants were in possession of the common staircase. Owing to wearing away of the cement, there was a depression, in one of the stairs, the plaintiff’s heel was caught in the depression, she fell from there and got injured. In an action against the defendant, it was held that the plaintiff being a licensee, the defendant could be made liable towards her only for a concealed danger. In this case, the injury to the plaintiff was due to the danger which was obvious and could have been observed by her, the defendants could not be made liable for the same.

The classification of lawful visitors into invitees and licensees has now been done away with by the Occupiers’ Liability Act, 1957 which lays down the same rule for all the lawful visitors to certain premises or structures. An occupier is expected to observe towards them, what is known as the “common duty of care” which, according to Section 2(1) means:

“a duty to take such care as all the circumstances of the case is 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”

Section 57 and 58, Indian Easement Act, 1882 provide the following duties of a licensor towards the licensee:

1) The grantor of a licence is bound to disclose, to the licensee any defect in the property affected by the licence, likely to be dangerous to the person or property of the licensee, of which the grantor, is, and the licensee is not aware. (Section 57)

2) The grantor of a licence is bound not to do anything likely to render the property affected by the licence dangerous to the person or property of the licensee. (Section 58)

The licensor is to disclose to the licensee traps, latent defects or hidden dangers of which he knows and which are not known to the licensee.

In Lakmichand Khetsy Punja vs. Ratanbai, 1927, the tenant on the fourth floor of a building was killed by the fall of a wall of the privy. The fall was due to a structural defect in the wall of which the landlord was aware and of which he had control for the purpose of repairs, but had ignored the due repairs. It was held by the Bombay High Court that the landlord had failed in observing the duty imposed upon him under Section 57 of the Easements Act and was, therefore, liable to pay compensation.

Even after the licensee has entered upon the licensed premises, the licensor has a duty to refrain from doing anything which may create a danger to the person or the property of the licensee.

This article is written by Deep Shikha, of Vivekanand Global University.

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