Vuli v BW Holdings Ltd [2008] FJHC 351; HBC97.2007 (17 December 2008)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Fiji

[1] The defendant company is a land developing company. In 2006 it was engaged in carrying out subdivision works at Viria West Road, Vatuwaqa, Suva. The land is situated at the seafront at the end of the Viria West Road which is a cul-de-sac. In the process of developing the seafront land, the defendant had constructed deep drainage system with drainage chambers around the cul de sac.

[2] On 30th July 2006 at about 9.00 p.m. when the plaintiff was walking along the foreshore, she fell into an uncovered drainage chamber and fractured her hand. She had gone there to pray. It is for injuries to her hand that she is claiming damages. The basis of her claim is breach of statutory duty and negligence.

[3] In its defence the defendant admits developing the property. It says that the defendant was a trespasser and also negligent in walking onto the land which was closed to all public. It also raised contributory negligence as a defence in that it says that the plaintiff failed to take heed of warning signs placed by the defendant on the said land and that the plaintiff went on the land knowing it was not safe to do so. It denies liability under Occupiers Liability Act.

[4] To discuss the above issue, one needs to consider the provisions of the Occupiers Liability Act Cap 33. The duty of care which an occupier of premises owes to all his visitors is the common duty of care: Section 4(1) of the Act.

[5] There is no dispute that the defendant was the occupier of the land where the plaintiff got injured. No issue was taken by the defendant during trial even though the pre-trial conference minutes make that an issue. The word occupier in the Occupiers Liability Act is used in a wide sense. A person need not have exclusive occupation to become an occupier. In considering the provisions of the English Occupiers Liability Act 1957, which is similar to our Act, Lord Denning in Wheat v. E. Lacon & Co. Ltd. [1966] UKHL 1; (1966) AC 552 stated that the word –

"In the Occupiers’ Liability Act, 1957, the word "occupier" is used in the same sense as it was used in the common law cases on occupiers’ liability for dangerous premises. It was simply a convenient word to denote a person who has a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises. Those persons were divided into two categories, invitees and licensees and a higher duty was owed to invitees than to licensees. But by the year 1956 the distinction between invitees and licensees had been reduced to vanishing point. The duty of the occupier had become simply a duty to take reasonable care to see that the premises were reasonably safe for people coming lawfully on to them: and it made no difference whether they were invitees or licensees: see Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264."

[6] The common law distinguished between invitees in whose visit the occupier had some material or other interest and licensees who came by express or implied permission. The Act codified the common law duties of occupiers. It put together invitees and licensees and called them visitors and provided that all visitors were owed a common duty of care.

[7] Hitendra Pande who is the project administrator of the defendant company told the court that the land in question belonged to the defendant company and a development was underway. He also stated that the defendant company had put up signs and posted security personnel at the site. If that is his assertion, it would indicate a measure of control by the defendant over the land in question. Accordingly I conclude that the defendant was the occupier of the land in question.

[8] The common duty of care is defined in Section 4(2) as a ‘duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’. Our Occupiers Liability Act does not specify what duty of care is owed by an occupier to a trespasser so that is determined by common law principles.

[9] Section 4(4) of the Act provides that in determining whether the occupier of premises has discharged the common duty of care to the visitor, regard must be had to all the circumstances of the case; for example, by giving warning though that by itself may not be enough, unless it is enough to enable the visitor to be reasonably safe.

[10] Prior to the passing of the Occupiers Liability Act 1968 a visitor who fully knew the existence of a danger could not recover for injuries sustained: London Graving Dock Co. Ltd. v. Horton 1951 AC 737. That position has now been altered by Section 4(5) which provides:

"the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor, and in this respect, the question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes a duty of care to another." [underlining is mine]

[11] The important words in the section are "willingly accepted". This is a situation of volenti non fit injuria. Therefore an occupier to absolve himself from liability must show that the visitor willingly took the risk. Mere knowledge of the existence of a risk is not the same as willing acceptance of the risk.

[12] The plaintiff told the court that she had been there once before about a fortnight ago. She would therefore know that development work was going on. However she also told me that she did not see any holes on that occasion.

[13] Viria West Road is a cul de sac. Beyond the end of the street is the ocean. The ocean in itself is an attraction for many people for one reason or another. The plaintiff told me that she had gone there with three other persons. No one apparently stopped them from going there. She said there were no signs stopping them from going there. Joseph Francis who lived close by told the court that millions of people went there. That may be a hyperbole but I take it to mean lots of people went there. He said people went there to drink, party, take girl friends or just go for a walk. There were no street lights there.

[14] The development had been going on for years and the defendant therefore would or ought to have known about people wandering about at the site.

[15] It is for the plaintiff to establish a license to enter. A license cannot be easily implied "Repeated trespass of itself confers no licence": Edwards v. Railway Executive (1952) 2 ALL ER 430, 436. A licence cannot or may not be implied merely because the owner knew of plaintiff’s presence or has failed to take necessary steps to prevent his entry. There must be evidence of express permission or that the occupier has so conducted himself that he cannot be heard to say that he did not give permission: Edwards at page 437.

[16] The defendant asserted that it took necessary steps to prevent entry by placing signs and empty drums on the road. Joseph Francis told the court that there were lots of signs there. He stated that the signs said it was restricted area; there were signs for workmen, vehicles and people. Hitendra Pande the project administrator told the court the signs said no trespassing and subdivision under development. These signs he said had been there since beginning of the construction which would be some time in the 1990s. Pande I believe was just a fill in witness. He had no personal knowledge about what happened in 2006 to the plaintiff. He had not visited the site where the plaintiff fell in a hole. In 2006 he was engaged in a different project in Lodoni, Korovou, many miles away.

[17] Francis I am of the view was called to prop up the existence of signs. He ended up saying there were no signs that trespassers will be prosecuted as Mr. Pande asserted. I find there were no signs at the site in 2006. The photos taken by Hitendra Pande were only taken few days before the trial and not in 2006. He admitted that the signs in the pictures look brand new.

[18] Even if signs existed, they would need to warn people that there existed danger of injury by falling into open drains and holes. The defendant as occupier knew of these dangers that would not be obvious to people coming there at night.

[19] I accept that portion of the evidence of Joseph Francis where he stated that lots of people visited the area. These persons were definitely not invited by the defendant. However Section 4(2) also extends to visitors "permitted by the occupier to be there". I find that even though the defendant may not have actively invited the people including the plaintiff, nevertheless, it did not stop them or discourage them from entering the area. People simply entered the area when they felt like. Permission could easily be implied here. In the event I am mistaken as to implied permission, I go on to consider the position of plaintiff as trespasser.

[20] The defence is the plaintiff was a trespasser and therefore the defendant owed her no duty of care.

[21] In England the Occupiers Liability Act 1984 deals with occupier’s duty to trespassers. Part of Mr. Prasad’s submissions was based upon the English Act 1984. We have no statutory provisions regarding an occupier’s duty to trespassers in Fiji. Hence the duty to a trespasser by an occupier is decided by the common law principles. There have been divergent views expressed on the duty of an occupier to a trespasser. Those views are quite familiar to most legal practitioners. I shall therefore allude to them very briefly.

[22] The orthodox view was well expressed by Lord Hailsham in R. Addie & Sons (Colleries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) A.C. 358 where recovery in respect of the death of a child trespasser who died on a colliery wheel was denied. There Lord Hailsham exphasised that something more than the absence of reasonable care was required to sheet home liability. He noted that "towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some willful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser".

[23] The second view had its basis in a triology of cases from the High Court of Australia namely Thompson v. Bankstown Corporation [1953] HCA 5; (1952) 87 CLR 619, Rich v. Commission for Railways [1959] HCA 37; (1950) 101 CLR 135 and Commission for Railways v. Cardy [1960] HCA 45; (1960) 104 CLR 274. By grafting onto the reasoning adopted by the High Court of Australia the English Court of Appeal in Videan v. British Transport Commission (1963) 2 QB 650 concluded that at least in respect of his activities an occupier owed the trespasser duty to take care not to injure a trespasser whose presence was foreseeable or reasonably to be anticipated having regard to all the circumstances. Therefore it favoured a duty of exercising reasonable care to guard against infliction of reasonably foreseeable injury.

[24] But enter Commissioner for Railways v. Quinlan (1964) AC 1054 where the Privy Council favoured the Lord Hailsham proposition as desirable in principle and intended to be the comprehensive definition of the duty owed, that is, not injuring the trespasser willfully and not to do a willful act in reckless disregard of ordinary humanity towards him but otherwise a person trespasses at his own risk.

[25] So by the time of Quinlan the law relating to duty of care towards trespassers was in a state of great confusion and contradiction. Only legislative intervention or a ruling from a higher court could alter the nature of the duty. The House of Lords did precisely that. The House of Lords re-looked at the law in British Railways Board v. Herrington [1972] UKHL 1; (1972) 1 ALL ER 749 and held that Addie’s case was out of date and held that although Addies case may have represented sound public policy forty years ago, it no longer was true in 1972. Herrington set the modern duty of care to trespassers by an occupier of premises as that to act with common sense and common humanity. Lord Reid at page 758 stated:

"So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give any thought to their safety."

"the occupier of premises does not owe to the trespasser a duty to take such care as in all the circumstances of the case is reasonable to see that the trespasser will be reasonably safe in using the premises for the purposes for which he is trespassing .... It does not follow that the occupier never owes any duty to the trespasser. If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated it is a duty to treat the trespasser with ordinary humanity."

[27] The duty espoused in Herrington was followed by the Privy Council in Southern Portland Cement Ltd. v. Cooper (1974) AC 623 and by the Supreme Court of Canada in Veinot v. Kerr Addison Mines (1975) 2 SCR 311.

[28] In Cooper the Privy Council held that since the duty of an occupier towards a trespasser was based not on the relationship forced upon him but on consideration of humanity, the occupiers duty only arose if he had knowledge or had created the danger on his land; that no unreasonable burden was to be placed on an occupier and accordingly an occupier was entitled to consider all the disadvantages to himself in taking action for the protection of trespassers and weigh them against the degree of likelihood of trespassers and the degree of hidden or unexpected danger to which trespassers may be exposed.

[29] Veinot endorsed the duty to trespasser as duty to treat him with ordinary humanity. It held that although as a general rule a person is not bound to anticipate presence of intruders on private property or to guard them from injury, a duty may arise if the occupier of the land knew or ought to from the surrounding circumstances have foreseen the presence of a trespasser.

[30] The content of duty of common humanity to trespassers is considered in relation to certain factors which would include:

[31] Lord Denning in Pannett v. McGuiness & Co. Ltd. (Court of Appeal) 1972 3 WLR 386 at 390 explained the circumstances one must bear in mind when considering duty to trespassers as follows:

"(1) You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it.

(2) You must take into account also the character of the intrusion by the trespasser. A wandering child or a straying adult stands in a different position from a poacher or a burglar. You may expect a child when you may not expect a burglar.

(3) You must also have regard to the nature of the place where the trespass occurs. An electrified railway line or a warehouse being demolished may require more precautions to be taken than a private house.

(4) You must also take into account the knowledge which the defendant has, or ought to have, of the likelihood of trespassers being present."

Lord Wilberforce in Herrington stated that undue burdens cannot be imposed on occupiers on grounds of humanity. At page 777(g) he states:

"Again, it must be remembered that we are concerned with trespassers, and a compromise must be reached between the demands of humanity and the necessity to avoid placing undue burdens on occupiers. What is reasonable depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it. The law, in this context takes account of the means and resources of the occupier or other person in control – what is reasonable for a railway company may be very unreasonable for a farmer, or (if this is relevant) a small contractor."

[32] In the present case there was development being conducted between the cul de sac and the sea. There is evidence that lot of people wandered around the area. I also found that there were no signs which informed the public of danger of holes. The defendant ought to have known as a reasonable person that a person could fall into an uncovered or an unbarricaded hole or drains. It should have realized the likelihood of such risk and could have placed adequate visible signs in all three languages or barricaded the holes with rope or nylon cords or covered them with planks. This would not have involved a huge financial outlay.

[33] Accordingly, I find that the defendant failed in its duty to act with humanity to the plaintiff. Accordingly it is liable.

[34] The plaintiff suffered fracture of right distil radius. Her hand was placed in full cast of plaster. A medical report prepared by Dr Sitiveni Traill dated 7th August 2006 stated that the fracture was likely to take six weeks to unite and it would be three months before she could resume her duties. A further report prepared by the same doctor states that the plaintiff has full range of motion of her wrist but that the plaintiff complains of pain during cold and rainy days.

[35] At the time of her injury she had six children and one was one year old. Her right hand was the dominant hand and therefore she would find difficulty in lifting and playing around with her young baby which parents are normally accustomed to and which gives them mutual joy and satisfaction and of which she was deprived. She could also at least for three months not play volleyball and netball.

[36] For pain and suffering I award the plaintiff a sum of $15,000.00. According to her medical report she could not work for three months or twelve weeks. She told the court that she worked 44 hours per week and earned $99.00 per week. Her rate of pay was $2.26cents per hour. For a period of 12 weeks this would add to $1,188.00. The plaintiff has asked for $400.00 for traveling expenses and medical expenses. Common sense dictates that the plaintiff would have made trips to hospital and may have purchased some pain killers and bandages. However plaintiff must also tell the court the distance from their home to hospital and the fares for each trip if they expect the court to grant such expenses. I am aware that taxi drivers do not issue receipts but that does not mean the plaintiff could not tell me what the fare was for each trip. In the absence of more detailed evidence I cannot allow the special damages.

[37] Before I make final order I make reference to one other point of practical importance. Recently, the jurisdiction of the Magistrates’ Courts for civil cases has been extended from $15,000.00 to $50,000.00. Counsels, quite rightly I believe, do not agree to have personal injury claims transferred to the Magistrates Court or file claims there as their clients would miss out on interest. There is some confusion as to whether the Magistrates Courts have power to award pre-judgment interest in case of personal injuries.

[38] Interest was not generally recoverable at common law for delay in payment of money: London, Chatham & Dover Railway Company v. South Eastern Railway [1893] UKLawRpAC 41; 1893 AC 429 (House of Lords). The exceptions were (a) where mercantile usage allowed interest or (b) where a contract provided for payment of interest.

[39] In Australia since Hungerford v. Walker [1989] HCA 8; (1989) 171 CLR 125 the position is somewhat more liberal. It held that a plaintiff who wishes to recover a debt or a liquidated amount of damages will also be able to claim compound interest on that amount for the period during which he has been denied the use of that money. Mason J. was of the view that a plaintiff suffers loss if damages due to a plaintiff are not paid promptly or if debt is not paid on due date because the money could have been invested at interest or used to reduce an existing debt where the plaintiff was incurring interest. Alternatively the plaintiff may have been forced to borrow money at an interest. The judges reasoned that this was a foreseeable loss which the losing party must pay.

[40] The position in Australia therefore is that a plaintiff may recover interest at common law if he/she seeks repayment of debt or seeks for liquidated amount but not if action is for claim for an unliquidated sum. The reason for this restriction is contained in the judgment of Brennan and Deane JJ. They stated that "there is no common law power to make an order for payment of interest to compensate for the delay in obtaining payment of what the court assesses to be the appropriate measure of damages for a wrongful act. If such interest is to be awarded at common law, it must be pursuant to statutory authority" at 152.

[41] In Fiji the statutory authority is Law Reform (Miscellaneous Provisions)(Death & Interest) Act which allows the High Court [not the Magistrates Court] to award interest at such rates it thinks fit on either whole of the debt or damages recovered in part of it and on either the whole or part of period when cause of action arose to date of judgment.

[42] Unless the Miscellaneous Provisions (Deaths & Interest) Act is amended to give power to the Magistrates Courts to award interest, on personal injury claims will continue to occupy a substantial portion of judges’ works and to a large extent frustrate the purpose for extending the Magistrates’ jurisdiction in civil matters.

[43] Generally speaking interest on pain and suffering is awarded at 6% per annum from the date of the writ of summons to the date of judgment and 3% per annum on special damages. I allow these rates.

(a)	For pain and suffering	$15,000.00
(b)	For loss of wages	1,188.00
(c)	Interest on (a) 6% from 9th March 2007 to 12th December 2008 (roughly 21 months)	1,575.00
(d)	Interest on (b) at 3% for 21 months	2.00
		$17,825.00

[45] This was a one day trial with minimum interruptions by parties and proceeded with reasonable expedition. I award costs which I summarily fix at $2,500.00.

[46] I enter judgment for the plaintiff against the defendant in the sum of $17,825.00 together with costs summarily fixed in the sum of $2,500.00.

High Court of Fiji

Vuli v BW Holdings Ltd [2008] FJHC 351; HBC97.2007 (17 December 2008)