The case of Gakumba Jossy vs Mandela National Stadium Ltd, Civil Suit No.37 of 2017

BY KABAHIMA INNOCENT

Introduction

Under the Occupiers’ liability principle, an occupier has a duty of care towards all visitors to his/her premises in respect of dangers due to the state of the premises or to things done or omitted to be done on them. “Occupier” in this case, as was observed in the case of E. Wheat Versus Lacon and Co. Ltd [1966]2 WLR 581, is simply a “convenient word to denote to a person who has sufficient degree of control over premises/place to put him under a duty of care towards those that come lawfully on to the premises.” Such premises may include vacant land, a construction site, a finished building, a hotel, stadium among so many others. The occupier must take such measures as is reasonable in all the circumstances of the case to ensure that their premises are safe or face the risk of being found liable for injuries sustained by one who lawfully enters upon such premises. One of such measures is, and the occupier’s duty may be satisfied, if the occupier displays appropriate safety signage at such premises.

The case of Gakumba Jossy vs Mandela National Stadium

In this case, Ms. Gakumba sued Mandela National Stadium Ltd to recover damages, interest and costs for injuries/fractures she sustained at the latter’s premises. She attended a wedding at the said premises and while exiting the reception, fell into a manhole in the parking area and sustained a leg fracture.

The occupier-Mandela National Stadium was found liable under the occupiers’ liability principle with the particulars of its negligence being; uncovered dangerous manhole, Non-functional security lights and the unavailability of warning signs. This article is majorly premised on this last aspect, the significance and nature of safety signage. This decision underscores the importance of warning signs/safety signage especially when it states that; “As a guest at that wedding, the defendant owed the plaintiff a duty of care to ensure the premises were safe. The least standard of care expected of the defendant in this case was put up warning signs notifying the guests of the uncovered manhole to avoid injuries like the one the plaintiff suffered or sustained.”

Hence what is apparent from the above is that had the occupier installed safety signage, perhaps the story would have been different, the occupier would not have been found liable. One more aspect that merits discussion is the nature of such signage. Let us assume the warning sign had been there but without the lights to render it visible, or that the warning sign there was that vehicles are not allowed to park, would the occupier be exonerated?

Negligence

As seen from the above-mentioned case, occupier’s liability is purely founded on negligence. Negligence was defined in that case to mean “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” A person is neither expected to act like a superhuman nor like an insane or unreasonable or imprudent person. The law requires that standard and degree of care on the part of a person which should have been taken by a reasonable and prudent person in the like circumstances. Although the standard is uniform, the degree of care is not, it varies in different circumstances. In a number of circumstances, all that is required is notify the visitor about a certain risk and the occupier shall have fulfilled their duty. The safety signage/warning sign must be reasonably placed to enable the visitor to be reasonably safe. These two factors ought to be taken into account when considering whether a warning sign is enough to enable the visitor to be reasonably safe.

Knowledge of risk and foreseeability.

It is important to note that at any premises, there are always a number of risks or dangers that one ought to be notified about hence the different types of signs which may include among others; Prohibition signs that point to prohibited locations, Mandatory signs/reminders that tell workers or visitors that they must wear protective gear like helmets, reflective vests etc, Danger/Warning signs that alert workers or visitors of the possible dangers/risks they are likely to be exposed to in certain areas, Emergency information signs that direct one on how to acquire assistance in emergency situations or point one to the direction of the equipment to extinguish fire.

Hence, the safety signage must be specific and capable of communicating the particular risk being warned about. Hidden dangers necessitate greater efforts to call attention to them than readily apparent risks. In instances where the injured visitor was or ought to have been sufficiently knowledgeable about the risk that led to their injuries, the occupier may not be held liable based on the foreseeability principle. In Staples Vs West Dorset District Council (UK), risks posed by wet algae on a high wall were so obvious that there was no need for a warning sign. However, for hidden dangers like an uncovered manhole, more especially where there are no lights, it would be foreseeable that one would suffer injury if the occupier does not use reasonable care to avoid danger. The warning sign must be capable of bringing it to the knowledge of any visitor passing by that there is an uncovered manhole, the foreseeability of danger would in such circumstances be extinguished by the clear warning and the occupier maybe exonerated in case one gets injured and holds the occupier accountable.

The safety signage may be complimented with other necessary safety measures.

In all circumstances, the communication must be effective. The objective, which is the provision of knowledge to the visitor in respect to a given risk must be achieved or at least seen to be achieved. The test as stated above is in regard to what a reasonable and prudent person would do or would not do given the circumstances. It may not be enough however, given the peculiar circumstances of each case, to have the warning sign alone for instance if it is not visible at night and there are no lights. it may not be enough to install a sign warning against swimming in a pond without fencing the same, especially in an area with children. One must reasonably examine the peculiar circumstances of each case and/or engage professional Occupational Safety and Health experts and/or legal experts to identify possible risks and advise on signage appropriate for each particular risk.

Conclusion:

Safety signage plays a critical role in the management system of any organisation or institution as it stands out to instruct not only workers but all visitors in their respective categories on what to do, what to avoid, where to go and where not to go and how to protect themselves against accidents, injuries and possible death while at the occupier’s premises. In communicating and creating awareness of the potential hazards and risks, the occupier is deemed to have sufficiently complied with the duty of care towards its visitors in respect to the dangers/risks communicated and is therefore shielded from liability.