LICENSEE, INVITEE AND TRESPASSER. The responsibility of an owner of premises of a public, or semi-public character, towards persons injured upon the premises, or upon the approaches to the premises, varies according to the character in which such persons are upon the premises. It is not intended here to touch upon the responsibility towards employees, but rather the liability of the owner to tenants, customers or guests of the owner, or of the tenants and trespassers, or as the authorities have subdivided them, licensee, invitee and trespasser. Throughout the decisions in all three classes runs what is known as the "trap" doctrine. The application of that doctrine is far more rigid in the case of a licensee or invitee than in the case of a bare licensee or a trespasser. Over fifty years ago, in 1866, the great case of Indermaur v. Dames1 was decided, and the line of reasoning as to the liability of an owner for injuries done to persons coming upon his premises has been consistently followed down to the present day. Indermaur v. Dames was an action to recover damages for hurt sustained by the plaintiff falling down a shaft at the defendant's place of business. The evidence was that the defendant, who carried on a sugar refining business, had at his place of business a shaft four feet three inches square and twenty-nine feet three inches deep. It was necessary in carrying on his business, and while it was in use it was necessary for the shaft to be open and unfenced. At the time of the accident the shaft was not in use but was neither covered or fenced. The plaintiff was a gas fitter who had been sent by his employer to examine some gas fixtures which had been installed in the defendant's place of business. In examining the gas fixtures it was necessary that he come on the floor where the shaft was. 1 L. R. 1 C. P. 274, in app. L. R. 2 C. P. 311. He fell down the shaft and was seriously injured. At the trial the plaintiff recovered damages for £400. The case in appeal was heard before Erle, C.J., Willis, Keating and Montague Smith, JJ. The court held that where a person is invited upon the premises of another for the purpose of lawful business a special duty is cast upon the occupier to use reasonable care to prevent damage to such person from danger. Of the three classes into which people coming upon premises have been divided, the class of licensee has been divided into two parts, licensee and bare licensee. In Warr v. London and County Council a licensee was defined as a person who has permission to do an act which without such permission would be unlawful. The term "bare licensee or mere licensee " is used to describe a person who has merely permission without any invitation either expressed or implied: Horzell v. Smythe, Castle v. Parker', Indermaur v. Dames, cited above. 66 It was held in Gautret v. Edgerton that the position of a bare licensee was somewhat similar to that of a person who receives a gift. He is entitled only to use the place as he finds it and cannot complain unless there is some intention to injure him or the owner or occupier has done some wrongful act by digging a ditch or anything equivalent to laying a trap. Gautret v. Edgerton was an action brought by a widow of a workman who was employed on some docks and in order to reach them, he, along with his fellow workmen, passed across a piece of vacant land belonging to the defendant. On this land were canals and bridges. One of the bridges was out of repair, and the workman crossing it fell into the canal and was drowned. Held, that the workman was a bare licensee and he must take the place as he finds it, and there being no trap there was no liability by the defendant. [1904] 1 K. B. 713. 37 C. B. N. S. 731. 4 18 L. R. 367. 5 (1867) L. R. 2 C. P. 371. 6 Corby v. Hill is an illustration of how an occupier of premises may be held liable to a licensee. The plaintiff had been accustomed to use a road, the property of the defendant. One night a. pile of slate was left on the road, and the plaintiff coming along in the dark fell over it and was injured. It was held that the permission to use the road was an implied intimation that it was safe, and leaving the slate on the road in the dark was a trap. In Batchelor v. Fortescue the defendant was a contractor engaged in excavation work for which he used a steam crane. The plaintiff had come to watch the defendant in his operations out of idle curiosity, and the crane breaking he was killed. It was held that there was no liability. The liability to a bare licensee was considered by the Ontario Court of Appeal in King v. Northern Navigation Company which reversed the judgment in favour of the plaintiff. 8 The action was one under Lord Campbell's Act. The facts were undisputed and were as follows. The deceased was a marine engineer and had been in the employ of the defendants as an engineer on the steamship Ionic during the season of 1910 and had been employed for the season of 1911. There was some evidence that during February, 1911, he had done certain work for the Northern Navigation Company on the steamship Ionic for which he had been paid at a rate per diem. On the morning of March 6th he left his home telling his wife that he was going over to the Ionic to get some paint for his own use. The Ionic had been laid up for the winter next to the steamship Huronic, which had to be crossed in order to get to the former vessel. The deceased was found the next day in the hold of the Huronic, having evidently fallen down the hatchway while endeavouring to cross to get on the Ionic. 64 C. B. N. S. 556. 711 Q. B. D. 474. 8 27 O. L. R. 79, 6 D. L. R. 69, in appeal from the Divisional Court, 24 O. L. R. 643. The finding of the jury was reversed by the Divisional Court, who held that King was a trespasser. The Ontario Court of Appeal (Moss, C.J.O., Garrow, MeLaren, Meredith and Magee, JJ.A.), were unanimous in dismissing the plaintiff's appeal. Judgments were delivered by Mr. Justice Garrow and Mr. Justice Meredith. Garrow, J.A., held that there was no trap laid and that the deceased was a bare licensee. Meredith, J.A., stated as follows:-" The case seems to me to have been one of a pure accident for which no one can be fairly blamed, and certainly not one for which defendants can be held to be liable for damages for the plaintiff." It will be observed from the above judgment that even in the case of a bare licensee the trap doctrine has to be considered. Even a bare licensee has the right to expect that the natural perils incident to the subject of the license shall not be increased without warning by the negligent behaviour of the grantor: Cockburn, J., in Gallagher v. Humphrey. This right of a bare licensee was discussed in Lowery v. Walker.10 Lowery v. Walker was an action for damages for injuries received by the plaintiff from a ferocious horse, the property of the defendant, who had put it into a field, which was habitually used by the public as a short cut to the knowledge of the defendant. It was held that putting the horse into the field with knowledge of the use to which the field was put by the public and a knowledge of the savage nature of the horse was in effect setting a trap. This decision is practically the same as the decision of Lord Kenyon in Brock v. Copeland.", He held that keeping a savage bull in his close which injured the plaintiff who was crossing the close with the permission of the defendant, rendered the defendant liable in damages. 9 (1862) L. T. 648. 10 [1911] A. C. 101, reversing Lowery v. Walker, [1910] 1 K. B. 173. 111 Esp. 203. As towards a trespasser the owner or occupier owes no duty save that of refraining from wilfully injuring him: Petrie v. Rostrevor 12; Bist v. London and South Western Railway.13 The position of a trespasser was laid down by a judgment of the Privy Council as follows: "The general rule is that a man trespasses at his own risk": Grand Trunk Railway v. Barnett." This was an action against a railway by a plaintiff who was stealing a ride. It was held there was no liability. An occupier may, however, render himself liable if he encourages or attracts trespassers to a place where they will be exposed either intentionally or unintentionally to a specific danger. It was held in Bird v. Holbrook 15 that where a person sets a spring gun on his land with the intention that it will go off and cause injury to persons trespassing he is liable in damages for intentional wrong as what he does really amounts to assault. 16 It was held in Townsend v. Wathen 18 that a man placing traps baited with meat in his own grounds so near a highway or to the lands of another that dogs passing along the highway or kept in his neighbour's premises would be attracted and injured would be liable in damages. It seems that the duty of the occupier of premises upon which an invitee comes is to take reasonable care to prevent injury from unusual dangers which are more or less hidden which he either knows of or should know of. In Chapman v. Rothwell" Erle, J., says "if you invite a customer to your shop and leave a pitfall open or a large iron peg in the floor upon which the customer is likely to trip, you are liable if an accident ensues." 12 [1898] 2 L. R. 556. 15 4 Bing. 628. 10 9 East, 277. |