Term Paper of Law of Tort

Liabilities for Dangerous Goods and Structures

Introduction:
An occupier of premises or of other structures such as cars, ships, aeroplanes or lifts owes an
obligation to the people entering the premises for their safety. The nature of obligation varies
according to the kinds of persons visiting the premises. These obligations are of two kinds. Firstly,
towards user of land or pedestrian. Secondly, towards a visitor. In case of chattels, if someone
receives injury because of the defect or danger in it then someone may be liable for this. But it is not
an easy task to determine what is a dangerous good or what can possibly be harmful. Because an
ordinary thing or object which is apparently does not seem to be dangerous may become dangerous
at any moment.

Liabilities for Dangerous Goods:

Generally, the chattels or goods are divided into 3 classes:
1. Inherently dangerous chattels.
2. Chattels or goods identified as dangerous
3. A chattel although in fact dangerous yet not identified as dangerous.

1.Inherently dangerous chattels:

Things which everyone recognizes to be dangerous are inherently dangerous chattels. But of course there
are precaution which will keep people safe from the danger posed by the thing. According to lord Write,
the thing that may do harm to an individual at any moment on getting released may be termed as naturally
dangerous. For example, he has referred to an open or naked sword, a gun filled with cartridge, explosives
etc. which may be risky at any moment even to move them. There are certain things which are of course
dangerous but are not dangerous when dangerous elements present on them are moved away. For
example, a wild and dangerous animal if released in human locality is dangerous but not dangerous if
detained in cages. So, there are certain things which are dangerous only for the lack of proper care and
caution. So, if a person fails to take necessary care and caution and causes injury to somebody then the
person will be held liable for not taking enough precaution.

2. Chattels or goods identified as dangerous:

Chattels or goods identified as dangerous means it is known to be dangerous to its seller or transferor.
And if the transferor or seller is aware of the danger of his chattel then he cannot evade his responsibility
to make it known to its receiver. If someone gives a chattel to its receiver under any contract or whatever,
the giver has the responsibility to let its dangerous nature to be known to the receiver. And if anybody is
injured because of the chattel or good then the giver will be held liable. And the giver will be held
responsible even if he himself had been unaware of the danger posed by the chattel, at the time he gave it
to its receiver. If the seller has any knowledge of dangerous nature or character of the defective article in
question but other do not know it, the seller concerned runs a responsibility to make it known to them. As
such, an article not so dangerous may become dangerous if any other know of dangerous elements
underlying it.

If one person lends an article to another, then the lender carries the responsibility to make it known to the
receiver. But the lender is not responsible beyond that. That means he is only responsible to let his know
the danger and warn him and his responsibility end there. Fact of a case dispose that the plaintiff was a
servant of a transport company. The defendant handed over a pot of nitric acid through an agent to the
plaintiff for transportation thereof. The defendant did not warn the plaintiff beforehand about the
dangerous nature or character of the substance. Plaintiff was carrying himself on his shoulder. On
conclusion of his journey and in course of such journey the pot full of nitric acid got exploded and the
plaintiff suffered fatally a damage therefrom. The court held the defendant liable.

3. Chattel although in fact dangerous yet not identified as dangerous:

This is about a chattel that poses danger but the danger is not identified. The house of lords in 1932 in
Donoglue v. Stevenson case held that if seller of an article sells it in such a manner as it reaches the buyer
in the same condition proper care has to be taken by the seller so that it did not cause any harm to the
body or wealth of the buyer. The responsibility of taking caution is not limited or confined to the man
producing the goods rather this principle has been applied to a number of cases and held that a man
manufacturing an article by assembling various spare parts, distributor, supplier and also a retailer will
follow the same principle. In Grant v. Australian Knitting Mills Ltd. This principle was applied to the sell
of woolen underwear. Plaintiff fell in illness by using woolen sulphite and brought action against both the
manufacturer and the retailer. The court decided that the retailer inspite of his knowledge about the
poisonous effect or aspect of the article refrained from informing the plaintiff and as such was liable.
Again, in Herschtal v. Steward Arden, defendant supplied a reconditioned motor car to the plaintiff but
nuts and bolts were not properly fixed in the wheels of that car as a result of which the wheels went of
while plaintiff was driving it. Although the plaintiff gave in writing that he had taken delivery of the car
in good condition and after proper checking, the court held the defendant liable in as much as a buyer
generally does not have the opportunity and necessity to check as to whether or not nuts and bolts were
properly and strongly fixed on the wheels of a car. So, it is seen that before fixing liability of a defendant
one must prove as to whether or not there was any negligence on the side of the defendant.

Circumstances in which liability is created:

1. In case of any injury received by the person taking an article when it is in use and under his
control after the same has been delivered to him by the person in possession.
2. In case the receiver of an article is injured by the same said article after the same has been
delivered or handed over to him by another person.
3. Liability, if any, of the original supplier for the loss or injury supplied by the last person receiving
the article.

Liability to the last transferee:

When an object changes many hands and does some harm to the last transferee thereof, a question may
arise as to who will be liable for the loss and injury suffered by the last transferee? There is no easy
answer of this question. Fact of the defendant entered into a contract with owner of a van for the purpose
of repairing the same but that the van was repaired carelessly. Consequently, plaintiff’s servant while
driving the van, a wheel suddenly went off and he splashed up there from. The court of appeal held, inter
alia, that plaintiff had no relief against the defendant in as much as the contract was made by the
defendant with plaintiff’s master and not with the plaintiff. But in the case of Donogne v. Stevension, it
was held that relief was available against the defendant in tort. So, in the absence of an evidence of
negligence, the transferor generally is not liable for the loss and injury suffered by the last transferee. But
this rule has certain exceptions under which the transferor becomes liable to the last transferee for this
damage. These exceptions are:

Deceit:

If somebody transfers something to some body else by way of false and fraudulent misrepresentation
describing the thing transferred to be safe and secure will be liable to the last transferee in tort.

Violation of duty to make cautions and care:

If the dangerous character or nature of the thing which is inherently dangerous be not known while
transferring the same, it is the duty of the transferor to make the transferee cautious about it. Failing this
the transferor will be liable to last transferee.

Rise of liability for duty to take care:

It has been decided finally in the case of Donog have v Stevenson that when producer of manufacturer of
any commodity sells it out in such a condition as it reaches the user and that there is no scope for any
third party’s interference in between the producer or manufacturer will take proper precautions so that the
user thereof does not suffer any damage.

Liability for dangerous premises and structures:

Liability on the side of the real possessor of the land and house is mainly out of precaution. The
precaution referred to above are of two kinds:

Firstly, towards user of land or towards a pedestrian.

Secondly, towards a visitor.

One may get damages in case anybody suffers a wrong and the damages may be allowed in an action for
nuisance and if any visitor coming to the house or structure suffers any damage, may get relief in tort.

The visitor may be classified into the following heads:

1. Person coming under contract.

2. Invitee.
3. Licensee and
4. Trespasser.

The extent of liability of a person in possession towards visitors in not the same rather it varies under
various circumstances. The extent of liability is greater toward a person coming under a contract. It is
proportionately less in case of an invitee and lesser still in case of a licensee. In the case of a trespasser,
we may say that there is no such liability. A statutory law was passed in England in 1957 relating to
liabilities of a person in possession. According to that law, persons coming under contract may be
classified into two heads lawful and trespasser.

Person coming under contract:

If any body comes under a contract for example a tenant may claim greater amount of liability from a
person in possession because the latter has a responsibility to warn the former where the defect lies and
whether there is any hidden danger anywhere in the premises.

Invitee:

Person coming in common interest of the visitor and the person in possession are called invitees for the
purpose of this tort. Buyers of a shop are invitees. If there be anything dangerous in the premises within
the knowledge of the person in possession and if the invitee receives any injury out of it, the person in
possession will be liable. This principle of law was established in the case of Indermaur v Dames in 1866.

In this case, plaintiff was engaged under a company as a gas fitter. On going to the defendant’s sugar
refinery factory for checking a gas Regulator, Plaintiff fell down in an unprotected drain for which the
defendant was held liable. Of course, the defendant could have been relieved of the liability if he could
prove that the plaintiff could have escaped from falling into the hidden drain had he been a little bit
careful and cautious but then the defendant is not liable if he willingly and intentionally takes risks with
full knowledge of the danger.

Licensee:

A person may be called a licensee if he enters into the premises with the express or implied permission of
the person in possession. In such cases, the person so entering has a personal interest and no common
interest involves like the case of an invitee. That being so, persons invited to attend a dinner fall into this
category because common interest of both is absent here. If somebody comes to see somebody else for
social or for any other necessity, he may be treated as a licensee. If anybody comes for begging alms or
for telling something or for any other purposes will be included into this class. In case, however, a
licensee wants to hold the defendant liable for any damage caused to him will prove that the defendant
was aware of the dangerous situation or circumstances in respect of which the persons entering therein
were ignorant. If, however, the person in possession had knowledge about the danger runs a risk of giving
a warning to them entering therein. The person in possession will not be liable for anything of which he
was not aware.

Trespasser:

A person entering into the courtyard or premises of another person without permission or without
business is a trespasser. A person in possession does not have liability whatever in relation to a trespasser.
When a person enters into another premises illegally does so in his own risk and responsibility.

Conclusion:
In many cases decision or opinion of the Judges may vary regarding the liability of dangerous chattels.
Whether or not the thing or chattel in question is inherently dangerous is for the judges to determine.
Some consider it as dangerous while some other do not thing it as such. So this question involves or
attracts essentially a question of law and as such judges will determine or decide the matter. And liability
is borne sometimes by an owner and sometimes by a person in possession of dangerous premises and
structures. The thing that has to be considered is that whether the possessor or the owner has taken all
sorts of precautions like a man of ordinary prudence.

References:
https://www.wikipedia.org

https://blog.ipleaders.in/liability-for-dangerous-premises/

https://www.britannica.com/topic/carriage-of-goods/Liability-for-safety-of-the-goods

Books:

The Law of Tort

By Dr, AB Siddique