NOTES OF CASES
| Date | 01 April 1950 |
| Published date | 01 April 1950 |
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00166.x |
NOTES
OF
CA4SES
UNUSUAL DANGER-INVITEE
IIorton
v.
London
Graving
Dock
Co.,
Ltd.
[1950]
1
All
E.R.
180.
Jennings
v.
Cole
[1949]
2
All
E.R.
191.
Stowell
v.
Railway Executive
[lOSQ]
2
All
E.R.
198.
Turner
v.
Arding
4
Flobbs,
Ltd.
[1949]
2
All
E.R.
911.
A.mm
eighty-four years the Coat of Appeal has at last been called
upon
to
settle
a
long-standing controversy caused by the ambiguity
of Willes
J.’s
leading judgment in
Indemaur
v.
Dames
(
(1866)
L.R.
1
C.P.
at p.
288).
Is
the duty of an invitor to an invitee to
take care to make the premises reasonably safe, or merely to warn
as to traps of which he knows
or
ought to know? These are the
two possible interpretations of Willes
J.’s
enunciation of the rule
:
that the occupier shall ‘use reasonable care to prevent damage
from unusual danger, which he knows
or
ought to know
’,
a form
of words which has given rise to numerous but inconclusive dicta
though hitherto to no authoritative exposition (see Salmond,
loth
ed., pp. 479-481; Winfield, 4th ed., pp.
562-4).
The profession
will, no doubt, be grateful both to
Mr.
Horton for his timely inter-
vention, and to the Court of Appeal for having adopted the
interpretation which seems, on the whole, more consistent with
recent developments in the law of negligence than a slavish
adherence to the exact phrasing
of
the rule by Willes
J.,
at a time
when no general duty of care was recognised by the common law.
It
is
noteworthy that WUes
J.
confined the duty to
‘
unusd
’
dangers. An unusual danger might either
be
one which is not
generally encountered
or
one which is
unexpected, i.e.,
one which
is
not obvious and which cannot be reasonably anticipated-the
latter interpretation being adopted by Phillimore
L.
J.
in
Norman.
v.
G.
W.
R.
[1915]
1
K.B.
at p. 596.
If
the former view is
adopted this means that one has to look at the particular danger
in relation to the particular type of premises to see whether it
is
the sort
of
danger normally associated with such premises
or
whether
it is something abnormal. Thus, ladders should usually have a
complete set of rungs, and a ladder with a missing rung would, on
this view, be an unusual danger, and the fact that the danger was
obvious to anyone using it would not prevent the duty of care
arising, however relevant it might
be
to the defence of contributory
negligence or volenti non
6t
injuria.
On
the other hand,
if
‘
unusual
’
means unexpected, the fact that the danger was obvious
would
be
decisive in determining whether
a
duty existed, for
an
280
ham
1950
NOTES
OF
CASEB
281
injured
person could not complain that
a
danger was unexpected
if
he either had
full
knowledge of it, or
it
was
so
obvious that
M
a
masonable person he must be deemed
to
have had such know-
ledge. Further,
on
this latter view, it would also
be
necessary to
consider the
‘
personal equation
’
of the plaintiff as a factor, for
a
danger might be obvious to a person with special knowledge or
ezperienez while reasonably escaping the attention of an inexperi-
enced person pr a newcomer to the premises.
It
will
therefore
be
apparent that two rather unsatisfactory consequences would flow
from treating an ‘unusual’ danger as implying something not
reasonably to be anticipated,
viz.
:-
(1)
The question of the obviousness of the danger becomes
linked with the existence of the duty rather than with the defence
of contributory negligence, and, indeed, the latter issue would hardly
be
likely to arise at all, for a degree of obviousness suf3cient to give
rise to that defence would itself extinguish the duty. Hence
no
case for contribution would arise under the
1945
Act.
(2)
Full
knowledge of the danger would also prevent the duty
from arising. Here, again, volenti would be inapplicable since
knowledge alone without consent to incur the
risk
would deprive
the plaintiff of this remedy.l
If,
on
the other hand,
‘
unusual
’
means
no
more than excep
tional or abnormal, the obviousness of the danger would not be
decisive, and issues of this kind would be relegated to the more
appropriate sphere
of
matters of defence. And proof of contributory
negligence would of course afford a case for possible apportionment,
while volenti would not bar the remedy unless there was full
consent
to
incur
the
risk
in accordance with the usual rule.
Further, a rule which imposes
on
an occupier the duty to take
reasonable care
to
guard the plaint8 against exceptional dangers
is
certainly more consonant with the wide general duty totake care
in
all
cases within the proximity test enunciated by
Lord
Atkin in
Donoghue
v.
Stevenson.
Unexpected
’
dangers, however, are for
practical purposes indistinguishable
from
‘
traps
’
or concealed
dangers, though
it
should
be
noted
here that a danger which is
oisible
may still
be
a trap
if
it
in
not obvious
to
a
person
using
the
pre.pises in
a
normal
and reasonable manner. (Cf.
pet
Lord
Wrenbury
in
Fainnan
v.
Perpetual Investment
Building
Society
[1928]
A.C. at p.
96.)
A
liability for traps even in this wider sen&
nevertheless falls a good deal short of the ordinary duty of reason-
able care. And it would
be
unfortunate, indeed,
if
because the
duties
of occupiers were defined before the general law-of negligence
wan
worked out,
thin
branch of law should now
be
allowed
to
lag
1
This
difEculty
would,
however,
dill
remain
in
the
cum
of,
licenyee where the
liability
h.8
never
been
put
higher
than
in
relation
to
traps
.
A
licensee
who
known
or
ou
ht
b
know
of
the
danger
b
appBrehtly
without
remedy even
in
the
abrencs
ofoontnbotory
negligem
or
evldence
of
consent
to
incur the
hk.
To continue reading
Request your trial