Court dismissed child trespasser's negligence claim against occupiers who never invited minors onto construction site.

[*877] 1972 January 31

(STYLIANIDES, AG, P.D.C. , CHRYSOSTOMIS, AG, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Andreas Kyprou Vasiliou, infant through

his father and natural guardian

Kypros Vasiliou,

Plaintiff,

v.

Klitos Constantinides and. another,

Defendants.

(Action No. 2730/69).

Occupier - Negligence - Trespasser - Child trespasser - Allurement - Duty owed by occupier to trespasser.

Occupier - Negligence - Child trespassing - Unfenced premises under construction - Boy of 10 injured by fall of pulley on which he was swinging - Occupiers never assented to use of premises by children - And on no occasion did their foreman allow children on the premises - Pulley safe to the knowledge of defendants - Not, as assembled or separately, dangerous by itself - Child held to be a trespasser and he must take premises as he finds them - Not injured intentionally by occupiers who are not guilty of reckless disregard for his safety.

A.Neocleous, for the Plaintiff.

Sir P. Cacoyannis, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

STYLIANIDES, AG. P.P.C. : The Plaintiff, a minor, by this Action claims damages for injuries received [*873] on 12/3/69

whilst he was on the Defendants' premises uhder construction situate at the corner of Thermopilae and Enosis Streets, in Limassol, due to the negligence and/or breach of statutory duty of the Defendants.

1. Pleadings

According to the Statement of Claim the Plaintiff on the material date was 10 years of age. The Defendants were the owners and/or the persons entitled to be registered as owners of a building under construction sistate at the corner of Enosis and Thermopilae Streets in Limassol town.

On the 12th March, 1969 whilst the Plaintiff with other children of his age were on the said premises of the Defendants, due to the negligence and/or breach of statutory duty of the Defendants and/or their servants or agents consisting in that they placed .in an unsafe way a pulley in such a way as to constitute a real but concealed peril and trap for anyone on the premises, and without warning the Plaintiff of the danger though they knew or they ought to have known that the Plaintiff was on their premises.

Not less than eight particulars of negligence are set out in paragraph 2 of the Statement of Claim. In the same paragraph the maxim of res ipsa loquitur is pleaded.

It is further alleged that the said premises were frequented by children who played therein and/or were accessible to minor children within the knowledge of the Defendants who tacitly and/or impliedly consented to those entrants, including the Plaintiff. [*879]

The Plaintiff minor was lawfully on the said premises. Particulars of personal injuries and special damages are also set out.

The Defendants in their Statement of Defence admitted the ownership of the premises which, at the material time, had been almost completed. They alleged that on 12th March, 1969, after sunset, the Plaintiff with other children trespassed into the said premises of the Defendants, they proceeded into the backyard of the building, some of them had climbed up the stairs on the roof of the 5th floor where an iron beam was protruding and on which the pulley was fixed. This pulley was used during the day in the ordinary building works. The ropes of the said pulley were placed, as usual, when the day work was over, on the terrace. They further contended that the Plaintiff and his companions or any one of them interfered with the pulley and its accessories and the ropes in such a way that the pulley fell off the iron beam down in the backyard of the building and thus the Plaintiff was injured. They deny that they were guilty of negligence or breach of statutory duty. It is lastly the allegation of the Defendants that they owed no duty to the Plaintiff not to be negligent, he being a trespasser.

2. Evidence

Nine witnesses including the Plaintiff gave evidence for the Plaintiff and Defendant No. 1 and a Police Constable testified for the Defence.

We shall describe the persons, the building and the circumstances under which this accident occurred. [*880]

A. The Plaintiff

The Plaintiff, on 12th March, 1969, was a boy 10 years old attending the 4th form of the Elementary School. The 12th of March, 1969 was a Wednesday and in the afternoon the Plaintiff with two companions of his, one of his own age. and a younger one, went to "Regal" Cinema which is at a distance of about 300 metres from the Defendants’ premises, The Plaintiff’s house is about 500 meters from the said, premises. After watching the first film the three children left the cinema and proceeded towards their respective homes.

B. Defendants’ premises and neighbourhood

The Defendants’ premises are on the corner of Thermopilae and Enosis Streets, opposite the yard of Katholiki Church. In the yard of Katholiki Church are standing the Metropolis of Limassol and a Sunday School which is attended on Wednesdays and on Sundays by children and adults who receive religious lessons. This yard is used as a parking place for rural buses and other vehicles. The neighbourhood is a residential one and naturally the families in the area have children.

The Defendants’ building was a multi-storey one. Photographs of the Defendants' completed building were produced as Exhs. 3 (a-f) depicting it from different angles. At the material date the building was almost complete. The ground floor consists of shops which, at the time, had no doors on. The access to these premises was easy and unobstructed from both roads. On the terrace a [*881] fixed iron beam was protruding over the backyard. On that iron beam a pulley was fitted and wired. The rope was hanging from this pulley and at the one end of the rope there was a metal weight of oval shape and at the end thereof there was a hook. This pulley was used, for lifting on the various floors buckets with materials in connection with the building operations.

The Court, besides having the advantage of inspecting the locus, was assisted by the production of a miniature model of the building with the iron beam and the pulley (Exh. 1).

D. W. 1, the Police Constable who inspected the place on the following morning, 13/3/69, prepared a rough sketch of the metal weight and the hook (Exh. 2). The bucket was hung on the hook and by pulling the other end of the rope, it was hoisted. This must have been safe enough for the Defendants' purposes. Close to the backyard there was a concrete staircase leading to all the floors. On the balconies, or verandahs, facing the backyard there were no railings at the time, and on the door operings no doors were fitted. The distance from the street up to the point in the backyard under the pulley was about 50 ft. This was the distance given by Defendant 1 , D.W.2, who measured it, whereas P.W.1, who stated that it was 10 metres, conceded that his was only a rough estimate. The pulley and the iron beam were not visible from any road. The passage from the street to the backyard was clear of any materials at the time. [*882]

The Defendants did not engage a building contractor They erected the premises on their own, but they had a foreman who was supervising the work Children, on rare occasions, went either to play with the materials or to intermeddle with the tools of the labourers, but they were shewed by the foreman and by P.W. 8 and P.W. 9.

C. Circumstances of the accident

The three children, on their way home from the "Regal" Cinema, entered the premises of the Defendants. On entering they saw other children on the staircase who told them that there were good hiding places in that building. The other children left and the three companions remained in the building.

It is the allegation of the Plaintiff (P.W.2) and his companion, Costakis Louca (P.W.3) that on seeing the rope, both ends of which were lying in the yard, they started swinging. P.W. 3 and the other boy were the first to swing and then the Plaintiff’s turn came. It is the version of the Plaintiff and his witnesses that whilst swinging, or acting Tarzan, the pulley fell off the iron beam and hit the Plaintiff on the head. The Plaintiff lost consciousness.

P.W. 1, Cleanthis Cleanthous, an Accountant who at the time was in the yard of Katholiki Church waiting for the bus, was called by one of the boys. He rushed and found the Plaintiff lying unconscious with his forehead bleeding. Behind the Plaintiff’s head, on the ground, this [*883] witness noticed a rope with an iron and hook at its end. Above him he noticed a beam with a pulley.

The Plaintiff was conveyed to the Limassol Hospital. As it was natural, his parents were informed, the case was reported to the Police and on the following morning a Police Constable, in the presence of the Plaintiff’s father (P.W. 5), visited the scene. This Constable, D.W.1, Andreas Theofanou, found in the yard the rope, the metal weight and the iron hook which, however, were not tied or connected with the rope. The pulley was in its proper position, duly wired on the iron beam. The Police Constable

climbed up the stairs up to the terrace and there he noticed foot steps caused by minor children. The weight of the pulley

was 3-4 okes and the weight of the metal object and the hook was three times less:.

We do not accept that the pulley hit the Plaintiff, because the pulley was seen by P.W.1 and the Constable, D.W.1, fitted and wired on the iron beam. The oval metal weight or the hook or both hit the Plaintiff. The only inference we can draw is that the Plaintiff was holding the one end of the rope, he was pulling the rope as swinging, and when

the metal weight of the hook reached the pulley, due to the weight of the boy, plus the additional weight of the power of the swinging and the resistance

of the pulley, the metal weight with the hook were cut off the rope, fell on the boy and thus the accident occurred. This was the opinion of D.W.1, the Police Constable, who has 13 years' experience in investigation of crimes said accidents. Indeed, it is [*884] the only inference, taking into consideration the circumstances surrounding the case and the findings on the spot.

We turn now to the legal aspect of the case. The only statutory provisions governing the matter in Cyprus is Section 51 of the Civil Wrongs Law, Cap. 148. The Civil Wrongs Law purported to be a codification of the Common Law of England but, as it was held in a number of cases, our Civil Wrongs Law is not exhaustive and, therefore, the English Common Law is applicable. (Vassiliou v. Vassiliou, 1 6 C,L.R. p. 69; Universal Advertising and Publishing Agency v. Panayiotis A. Vouros, 19 C.L.R. p. 87; Electricity Authority of Cyprus v. Antonis Kipp aris,

24 C.L.R. 121; Section 29(c) of the Courts of Justice Law 14/60),

In Hadjitheodossiou v. Koulia and Another, (1970) 10 J.S.C. , Vassiliades, P., as he then was, at p. 1076 had this to

say:-

"The matter is undoubtedly governed by the statutory provisions regarding negligence in section 51 of the Civil Wrongs Law, Cap.148. These provisions originate and purport to codify the English Common Law regarding the tort of negligence, (See The Universal Advertising & Publishing Agency v. Panayiotis Vouros, 19 C.L.R. 87). But here in Cyprus, being statutory provisions, they must be read, interpreted and applied in such a manner as to give effect to the will and intention of the legislator; same as all other [*885] statutory provisions are construed and applied by the Court, in their function of fitting the law of the country to the living conditions therein; and of developing it, under the accepted rules of construction, so as to keep pace, wherever possible, with the developing conditions in the particular field which the legislator intended to serve by making the statute; until such statutory provisions be amended or replaced by subsequent legislation. How similar statutory provisions are construed and applied in another jurisdiction, is extremely helpful to the judge; but he must never lose sight of the fact that the statutory provisions which he is called upon to construe and apply were made by the country’s legislator with the object and intention of serving the people of this country; and they must, therefore, be construed and applied accordingly".

At Common Law the occupiers’ liability depended on whether the persons injured on their premises was invitee, licensee or trespasser.

There is no allegation that the Plaintiff was an invitee. The Plaintiff’s allegation is that he was a licensee and the Defendants’ contention is that the Plaintiff was a trespasser.

Before resolving whether the Plaintiff was a trespasser or a licensee, we shall embark on the liability to trespassers and to bare licensees. [*886]

Liability to trespassers

In the case of R. Addie & Sons (Collieries) Ltd.. v. Dumbreck. (1929) All E.R. Reprint, 1, Lord Hailsham, L. C., at page 4 said: -

"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 his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care".

Salmon, L.J., however, in the very recent case of Herrington v. British Railways Board. (1971) 1 All E.R., 897, said that he is unable to read Addie's case without a sense of shock.

"The doctrine that a trespasser, however innocent, enters land at his own risk, that in no circumstances is he owed a duty of reasonable or. any care by the owners or occupiers of the land however conscious they may be of the likelihood of his presence and of the grave risk of terrible injury to. which he will probably be exposed, may have been all very well when rights of property, particularly in land, were regarded as more sacrosanct than any other human right. This view was widely held in the nineteenth century and perhaps, even at the [*887] beginning of the present century, influenced the minds of those· who were then no longer young".

In Latham v. Richard Johnson & Nephew Ltd., (1911-1913)A11 E. R. Reprint, 117 and 124, Hamilton, L. J., said: -

"The owner of the property is under a duty not to injure the trespasser wilfully; 'not to do a wilful act in reckless disregard of ordinary humanity towards him’; but otherwise a man ’trespasses at his own risk’".

In Cooke v. Midland Great Western Railway of Ireland, (1909) A.C. 229, the defendant Railway Company kept a dangerous turn-table on their land close to a public road. The Company knew that children were in the habit of playing on the turn-table to which they obtained easy access through a wall worn gap in a fence which the respondents were bound by statute to maintain. A child between 4-5 years of age, having been seriously injured on the turn-table, it was held that there was evidence for the jury of actionable negligence on the part of the Railway Company. Lord Macnaghten treated the case as one in which the children were resorting to the turn-table with the tacit permission of the Railway Company. Lord Atkinson said: -

"If the plaintiff entered upon this piece of land, and played on this turn-table with the leave and licence of the defendants, then [*888] these latter owed to the child a duty not to permit the machine to be in the movable, and dangerous because movable, condition in which they permitted it, in fact, to be".

In Hardy v. Central london Railway Company, (1920) 3

K. B. 459, in which a child was injured on a moving staircase on the underground railway where he had no right to be, Scrutton, L.J. said:-

"If the children were trespassers, the landowner was not entitled intentionally to injure them …………… but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers".

In Grand Trunk Railway Co. of Canada v. Barnett, All E.R. Reprint Extension Vol. (1911-1913), 1624, the respondent, who was not a passenger, nor a servant of the company, in contravention of the regulations of the company, got on to the platform of a car in an empty train of the P. Company which, in pursuance of an arrangement between the companies, was being shunted over the line of the appellant company. He had no permission or licence so to use the car, and did so in order to get a lift along the line on his way home. There was evidence that he had done the same thing on other occasions.

The car on which he was came into collision with [*889] a train of the appellant company, in consequence of those in charge of that train, and he was seriously injured. It was held that he could not recover damages as the company were not liable. At page 1628, we read; -

"The general rule, therefore, is that a man trespasses at his own risk.. This is shown by a long line of authorities ……… "

And, further down:-

"Again, even if he be a trespasser, a question may arise as to whether or not the injury was due to some wilful act of the owner of the land involving something worse than the absence of reasonable care. An instance of this occurred where an owner placed a horse he knew to be savage in a field which he knew to be used by persons as a short cut on their way to a railway station (Lowery v. Walker (1910) 1 K.

B. 173). In cases of that character there is a wilful or reckless disregard of ordinary humanity rather than mere absence of reasonable care".

In Excelsior Wire Rope Co., Ltd. v. Callan, (1930) All E. R. Rep., 1, to the knowledge of the appellants, children constantly played round a post and pulley whereby the appellants, by means of an endless wire rope attached to the pulley, moved railways trucks along a siding. The servants of the appellants set the rope in motion without, at that moment, seeing whether there were any children in [*890] such a

position near the post as to be exposed to danger. In fact the infant plaintiff, a child of five years old, was then

swinging on the rope close to the post, and she was injured. It was held by the House of Lords that in the circumstances the appellants owed a duty to the children to take reasonable precautions to see that they were not injured by the occasional use to which the appellants put a dangerous machine, and, therefore, they were liable to the plaintiff for negligence, Lord Buckmaster said at page 4 of the report –

"It was, therefore, well known to the appellants that when this machine was going to start it was extremely likely that children, with the wire in motion, would be exposed to grave danger. I do not think it necessary in the least to define that it is because the children were licensees in relation to the machine or trespassers

in relation to the machine that the obligation cast upon the appellants here exists. Having a machine which to their knowledge is constantly

being played with by children who are not prevented from playing with it, or warned away except just before it started, the duty owed by such people, when they set the machinery in motion, is to see that no child is there, and no injury results". [*891]

In Mourton v. Poulter, ( 1930)Αll E. R. Rep., p. 6 at p. 9 Scrutton, L. J. , said:-

"The difference between the two cases is that in Addie's case the people who set the wire rope in motion were down a hill at a place from which they could not see the wheel and the children who were beside it, while in the Excelsior Wire Rope Co.'s. case, the man who gave the signal to start the wheel was standing only about twenty yards away from it, and could have seen it and the children if he had looked round without moving from his position".

In Edwards v. Railway Executive, (1952) A. C., 737 where a child trespasser was run over by an electric train, the defendants were held not liable because there was no evidence of wilful or reckless behaviour on the part of the motor-man in failing to stop the train before it ran over the boy. (Per Lord Goddard).

In Videan v. British Transport Commission. (1963) 2 All E. R. 860, Lord Denning and Lord Harman gave judgment on the same lines. There, in the report, we read:-

"So far as the static condition of the premises was concerned, the old law still held good. But in relation to activities on the land, His Lordship held that the true test of his liability was foreseeability". [*892]

Lord Denning said:-

"But what is his duty towards a trespasser? The answer, I think, is to he found by applying the test of foreseeability which is so amply established in our law by Donoghue v. Stevenson, Hay (or Bourhill) v. Young and Overseas Tankship (U.K.), Ltd.

V. Morts Dock & Entineering Co., Ltd. (The Wagon Mound). The true principle is this: In the ordinary way the duty to use reasonable care extends to all persons lawfully on the land, but it does not extend to trespassers; for the simple reasons that he cannot ordinarily be expected to foresee the presence of a trespasser. But the circumstances may be such that he ought to foresee even the presence of a trespasser; and then the duty of care extends to the trespasser also………………..

Once he foresees their presence, he owes them the common duty of care, no more and no less ... For you must remember that, in applying the test of foreseeability, you have to consider all the circumstances of the particular case: (i) You must take into account, for instance, the gravity and likelihood of the probable injury. (ii) The character of the intrusion by the trespasser. You may expect a child where you would not [*893] expect a burglar. (iii) The nature of the place where the trespass occurs. (iv) The knowledge which the defendant has, or ought to have, of the likelihood of trespassers being present".

The Privy Council in Commissioner for Railways V. Quinlan (1964) All E. R. p. 897 rejected the view of the Court of Appeal in Videan's case. At p. 913 we read:-

"Their lordships have studied with care and

respect the judgments of the members of the Court of Appeal in England in Videan v. British Transport Commission, two of

which adopt much the same line of reasoning as that on which their lordships have commented in the recent H.C. cases in Australia but they remain quite unpersuaded that the measure of an occupier's duty to a trespasser can be determined in all cases by what is called the foreseeability test or that it is correct to describe the nature of the duty by saying that if the circumstances are such that the occupier ought to foresee’ even the presence of a trespasser, the duty of care extends to the trespasser also".

Latham v. Richard Johnson and Nephew Ltd., Robert Addie & Sons,. Ltd., v. Dunbreck, Edwards v. Railway Executive and Grand Trunk Ry, Co. of Canada v. Barnett were cited and followed. [*894]

At page 905 we read: -

"It follows then that, so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured - an important qualification - the occupier’s duty is limited in the accepted terms. It is so limited because the character of trespassing is such that the law does not think it just to require the occupier to speculate about or to foresee the movements of a trespasser: And this is equally true whether the trespasser fills the unsympathetic part of the burglar or the sympathetic part of the traveller who has lost his way".

In Herrington v. British Railways Board, (1971) 1. All E.

R. p. 897 Salmon, L. J. at p. 901 said:-

"Counsel for the defendants contends that Addie's case is a binding authority for the proposition that no duty of care is owed by an occupier of land to any trespasser and therefore the learned judge was wrong in holding that the defendants were negligent; since the plaintiff was a trespasser (so the argument goes), the defendants owed him no duty of care and accordingly could not be liable to him in negligence. It is to be hoped that the House of Lords, [*895] which since 1966 is no longer absolutely bound by its own decisions, may soon have an opportunity of reconsidering the proposition of law accepted as well established as long ago as the middle of the nineteenth century (see Great Northern Ry. Co., v. Harrison) and re-stated in Addie's case. The doctrine that a trespasser, however innocent, enters land at his own risk, that in no circumstances is he owed a duty of reasonable or any care by the owners or occupiers of the land however conscious they may be of the likelihood of his presence and of the grave risk of terrible injury to which he will probably be exposed, may have been all very well when rights of property, particularly in land, were regarded as more sacrosanct than any other human right. This view was widely held in the nineteenth century and perhaps, even at the beginning of the present century, influenced the minds of those who were then no longer young".

Edmund Davies, L. J., at p. 912 had this to say: -

"I have already indicated what I respectfully regard as the preferable state of the law. In other words, I should like to be able to say that in my judgment the law is that the test for liability to a trespasser rests on reasonable foreseeability and that the 'reckless disregard' test is simply another way of expressing the duty [*896] of care owed to a trespasser in the light of all the relevant facts. But with the utmost diffidence I have to say that I think the law is otherwise. The problem is not simply that of deciding between the binding authorities of the English Courts and persuasive views expressed by the Privy Council, difficult though that problem can of itself be. As I read the cases, the binding decisions of the House of lords compel this Court to say that 'reckless disregard’ is the yardstick which we must at present apply, and that the Donoghue v, Stevenson test cannot be applied to Trespassers because, as Lord Radcliffe said in Quinlan's case '... it is in direct conflict with an inescapable weight of established rules of the common law', even though those rules are not in all respects entirely consonant with each other.

At this stage two questions arise:

(A) Must the trespasser be knwon to be actually present before the occupier can be held to have acted even with reckless disregard? (B) What does 'reckless disregard’ connote? As to (A), the answer appears to be that something less than knowledge of actual presence will suffice".

Cross, L. J., at p. 919 said:-

"I turn now to the law as it stands. For [*897] the reasons which will appear hereafter, it is not strictly necessary for me to choose between the two rival views, hut as at present advised I prefer that expressed by the Privy Council. The distinction sought to be drawn between static conditions and current operations does not seem to me, any more than it seemed to Pearson, L. J., to be at all satisfactory, and I cannot think that anyone would have thought of drawing it but for the hope of thereby circumventing Addie's case".

And, further down:-

"I am, therefore, prepared to deal with this appeal on the assumption that the judge was wrong in deciding the case in favour of the plaintiff by applying the ’foreseeability’ test approved in Videan's case".

We would prefer the law to be as pronounced by the two different compositions of the English Court of Appeal in Videan and Herrington cases. The Quinlan case is not an English judgment. It is technically the advice of the Board - the Judicial Committee of the Privy Council - from an Australian Appeal. The Privy Council had jurisdiction to hear all appeals from the plantation (Fryer v. Bernard, 1724 2 P. W. 262). Duly appeals on Prize law from the English Admiralty Court lie to the Privy Council, The institution of the Judicial Committee by the Judicial Committee Act, 1833 [*898] had a functional effect on the judicial powers of the Privy Council itself. The order in Council which implements the decision of such appeals is. in everything but form equivalent of a legal judgment.

When Cyprus ceased to be a colony, the judicial prerogative of the English Sovereign has ceased in respect of this country.

The "decision" of the Privy Council is not an authority either in England or in our Republic. The views of the Privy Council are only persuasive. If there is a conflict of opinion between an English Court and the Privy Council we need not stress that where the Common Law applies in this country or our statutes are a codification of the English Common Law, we follow and apply the decision of the English Court.

In Quinlan case the Brivy Council followed and applied the rule in Addie’s case. It is our view that the rule in Addie’s case, though criticised and in some respect offends common sense and the modern development of the law of negligence, is still the law which the Courts have to apply until it is overruled by the House of Lords.

A licensee is one to whom permission to enter premises has been given hut who does not have a common interest with the occupier of the premises.

"A ‘bare licensee’ means any person who lawfully comes upon any immovable property otherwise than – [*899]

(i) in connection with any business in which the occupier of the property is interested, or

(ii) in the lawful performance of any public duty under the provisions of any enactment or otherwise, and includes the· guests, not being guests for reward, and the servants of the occupier of any immovable property". (Section 51 (2) (b) of_the Civil Wrongs Law, Cap. 148).

The duty of the occupier, according to this Section is only to warn such bare licensee of any concealed danger or hidden peril in or upon such immovable property of which such occupier knew or must be presumed to have known.

In Fairman v. The Perpetual Building Society (1923) A. C. 74, Lord Wrenbury said:-

"The licensee must take the premises as he finds them; but this is apart from and subject to that which follows as to concealed dangers. The owner must not expose the licensee to a hidden peril. If there is some danger of which the owner has knowledge or ought to have known and which is not known to the licensee or obvious to a licensee, to inform him of it. If the danger is not obvious if it is a concealed danger and the licensee is injured, the owner is liable."

In Latham v. R. Johnson & Nephew Ltd., (1913) [*900] 1 K. B. 411, (1911 -13) All E.R. (Reprint) 117, Hamilton, L.J., said: -

"The rule as to licensees, too, is that they must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them... Two other terms must be alluded to - a ’trap' and 'attraction' or 'allurement'. A trap is a figure of speech, not a formula. It involves the idea of concealment and surprise of an appearance of safety under circumstances cloaking a reality of danger. Owners and occupiers alike expose licensees and visitors to traps on their premises at their peril, but a trap is a relative term. In the case of an infant, there are moral as well as physical traps. There may accordingly be a duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation ... Finally, what objects which attract infants to their hurt are traps even to them? Not all objects with which children hurt themselves simpliciter. A child can get into mischief and hurt itself with anything if it is young enough, In some cases the answer may rest with the jury, but it must be a matter of law to say whether a given object can be a trap in the double sense of being fascinating and fatal. No strict answer has been, or perhaps ever will be given to the question..." [*901]

Is the Plaintiff in this action a trespasser or a licensee?

In Edwards and Another v. Railways Executive (1952) 2 All E. R. p. 430 where on a railway company's property a boy aged nine years was run over by an electric train and injured it was held that to establish that the boy was on the embankment as a licensee, the onus was on those claiming it to show, either express permission by the railway company or that the company had so conducted itself that it could not be heard to say that it

did not assent to the use of the premises by children; a licence was not to be lightly inferred, and the onus was not discharged by

showing that, in spite of the fence, children constantly broke through ; even assuming that the company had knowledge of the intrusion, that of itself did not constitute the children licensees, nor was the company bound to take every possible step to keep out intruders, but so long as it took some steps to show that it resented and would try to prevent the intrusion, that was strong evidence to rebut the inference of a licence; in this connection it was material to consider the state of mind of the boy and whether in the circumstances he thought that he was on the premises with the leave of the company.

With this background of the law, we turn to the facts and circumstances of the present case. The Defendants’ premises were not fenced but an occupier has no duty at common law to fence his property. The Defendants in this case had no statutory duty to fence. [*902]

P. W. 8 and P. W.9 stated that children on occasions went into the premises of the Defendants and particularly they either intermeddle with the shingle and sand, or they interfered with some tools of the labourers. The same witnesses, however, stated that the boys were chased away or shewed away by the witnesses and by the foreman of the Defendants. On no occasion the foreman of the Defendants allowed children on the premises. The Defendants never assented to the use of their premises by children. The intruders were considered to our mind as trespassers. The Defendants themselves had no knowledge that children went into their premises at any time, but the knowledge of their own foreman is presumed to be their own knowledge.

Did the Plaintiff and his companions consider themselves licensees They left Regal Cinema and were on their way home. They entered the premises and there is no evidence that the state of their mind was such as to even faintly infer that they had the tacit licence or any licence of the owners.

The Plaintiff in this case was a child 10 years old. The disposition of children of tender years to mischief has given their elders nearly as much trouble in the law Courts as outside

them, and the law about dangerous structures has been modified with respect to them. If there is an implied licence or allurement, the duty of the occupier

is different.

In Perry v. Thomas Wrigley, ltd., and Others, (1955) 3 All E. R. p.243 Oliver J., said:- [*903]

"If a child is a trespasser, having no licence, actual or implied, to go on the premises, there is no liability on the occupier of the premises, whatever the allurement, except where the occupier has acted with complete recklessness".

And, further down he said:-

"What is an allurement? I suppose that it is something attractive but dangerous, although not apparently so - something insidious. The capacity of an object to attract will, of course, vary with the age and experience of the person concerned".

The onus of proof was on the Plaintiff to establish his licence. The fact that the Plaintiff and his companions encountered on the premises two other boys does not suggest of itself that the Plaintiff considered his invasion as a licenced one.

In Edwards and Another v. Railways Executive (supra), Lord Porter at p. 435 said:-

"Even assuming that the Respondents had knowledge of the intrusion of children on to the embankment, the suggestion that that knowledge of itself constitutes the children licensees, in my opinion, carries the doctrine of impliedlicence much too far. No doubt, the owner of the premises must take steps to show that he resents and will try to prevent the invasion". [*904]

The Defendants' foreman, as we have already stated, not only did not allow children on the premises but he always shewed them away.

It was submitted by Plaintiff's Counsel that the Defendants did not take all necessary steps.

The following dictum of Lord Porter is a complete answer to this submission:-

"But I do not accept the theory that every possible step to keep out intruders must be taken and, if it is not, a licence may be inferred".

The Plaintiff was a trespasser and he must take the premises as he finds them. The Defendants did not intentionally injure him. The Defendants were not guilty of reckless disregard for his safety.

Salmon, L. J., in Herrington case (supra) at p.906 said:-

"What was meant by 'a reckless disregard for safety' in the Addie line of cases? In my View it means doing or omitting to do something when one recognises that one's act or omission is likely to cause serious injury and one does not. care whether it does or not. Recklessness in the context of the Addie line of cases is something akin to wilfully causing injury. Ex hypothesi it is something different [*905] in kind from negligence. Those cases lay down that an occupier owes no duty of care to a trespasser. Negligence is a breach of a legal duty to take reasonable care resulting in damage. The degree of care required by the law of negligence never varies".

The beam and the pulley were safe to the knowledge of the Defendants. The rope was strong. The thickness of it was described by D. W. 1, the Police Officer. They were not as assembled or separately dangerous by themselves. It was used for the lifting of buckets with building materials and certainly they were not light materials.

The presence of children trespassers was foreseeable. But there was no danger concealed or other which the Defendants knew or ought to have known. The likelihood of this accident and the way it happened could not be foreseen by a reasonable man.

In view of what we have endeavoured to explain, the Defendants are not liable to the Plaintiff. Even if Addie's case were overruled or modified in accordance with the views expressed by the English Court of Appeal, again the Defendants in the case under consideration would not be liable. They would not be liable even to a "bare licensee".

For the reasons we have endeavoured to explain this Action will ultimately be dismissed. [*906]

Damages

Consonant to authority we shall proceed to assess the damages the Plaintiff would have been entitled to had he been successful.

The Plaintiff was conveyed unconscious from the scene to the Limassol Hospital where, according to the evidence of his father (P. W. 5), he was kept as in-patient for 14 days.

Unfortunately the only medical evidence adduced is that of Dr. Messi (P. W. 7), a Neuro-Psychiatrist, to whom the Plaintiff was referred by his advocate over a year after the accident, obviously for the sole purpose of securing evidence for this trial.

This Neuro-Psychiatrist has had for the last three years a consulting room in Limassol. He examined the Plaintiff on 26/3/70 and on 13/10/70. He obtained information from the hospital and the child’s father.

According to this witness, when the boy was rushed to the hospital, a depressed skull was discovered. A successful emergency operation v/as performed to remove the piece of bone that was compressing the brain. The patient was discharged from the hospital on 29/3/69.

An E.E.G. was taken which was definitely abnormal. The conclusion of the E.E.G, was that it contained paroxysmal activity in both fronto temporal regions and this abnormality is one that is seen as a result of brain injury. A bender gestalt test, that is a test for visual motor tasks, [*907] was carried out. This test showed evidence of organic impairment suggesting some brain damage. A 7 x 2 cm. irregular scalp defect was felt in the front parietal region.

This doctor concluded that this boy had suffered a severe cranio-cerebral injury, with depressed fracture of the skull and brain contusion. Judging from the information given to him by the father of the Plaintiff and a report of a teacher, this doctor formed the opinion that as a result of the injury, the Plaintiff developed a change in his personality and his behaviour after the accident.

The father had every interest to give such information as, to his mind, this would enhance the amount of damages. Though we granted an adjournment for the teacher to come and give evidence, for reasons best known to the Plaintiff’s side and the teacher, he did not attend the Court.

We saw the boy ourselves in the witness box. We do not profess to be teachers or doctors. He did not repeat any form in school since the accident and his marks in Mathematics in the recent test in the Gymnasium were 15 out of 20 we presume. This does not support the doctor’s opinion that the changes "in the personality and behaviour of the boy will create a limitation in his future academic career".

Neither the father nor the Plaintiff could give any answer in support of the vague statement that his progress in school deteriorated. The reluctance of the teacher to come to Court or his not being called, and we are not safe [*908] to state what was the correct position, is to be commented adversely.

The father stated that the Plaintiff after the accident is nervous, gets annoyed, shouts about.

Dr. Messi concluded that this kind of injury has the possibility of 15-20%, for the five years following the accident, to develop post traumatic epilepsy.

Mr. Cacoyannis, in his able address, attacked the evidence of Dr. Messi.

It became the practice for the defendant's doctor to examine the plaintiff before the commencement of the hearing.

The Courts of this country followed the English decision in Edmeades v. Thames Board Mills Ltd. ( 1969) 2 Q. B. 67 and stayed actions until the plaintiff agreed to submit to examination by doctor or doctors on behalf of the Defendant.

In the present, case the Defendants did not apply for their doctor to examine the Plaintiff. They called no medical evidence.

After all we have said, we find that this young boy received a serious cranio-cerebral injury. He underwent a

successful operation; he suffered brain contusion. The E. E. G, was abnormal in that it contained paroxysmal activity

in both fronto temporal regions. There is a possibility of 15-20% for the following two years from today to develop post traumatic epilepsy. In March, [*909] 1970 he made mistakes in test memory. His condition improved

in October, 1970. We attach no importance to the allegations for personality changes. Probably he was spoiled by his parents. More than a

year elapsed from the time, 4/11/70, Dr. Messi issued his report. None of the two sides took any interest in the present condition of the Plaintiff.

In assessing the general damages to which the Plaintiff is entitled, we addressed our mind to comparable awards.

"We do think that uniformity of awards of damages leads to certainty in litigation and is, indeed, desirable".

(Yiannis Thoma Papadopoullos v. Yiannoulla Gregori Tryfonos and Another, (1968) 3 J. S. C.p. 264. at p. 266 per Triantafyllides, J., as he then was.)

In Papaphotis v. John Murphy & Sons Ltd., (1969) C. A. January 27, 1969 reported also in the 1970 supplement of Kemp & Kemp The

Quantum of Damages, the plaintiff was a 20 boy aged 6 at the date of the accident and 11 and 12 at the date of the trial. He was knocked down by a lorry and sustained fractures of the skull, both sides of the lower jaw, a face bone and a finger and various lacerations, and he lost a tooth which had to be extracted. It was feared that his brain might be affected, that he might become an epileptic and; might suffer a change of personality. He was detained in four hospitals at different times. He had to undergo [*910] a tracheotomy and his jaw had been tied with wire. He attended hospital as an out-patient for eighteen months. He had made an exceptionally good recovery. The skull and jaw had mended well. There was no brain injury. The broken finger had proved to be quite a minor matter. There was very little in the nature of scars Deft on his face and neck. There was no change of personality proved. He had become jealous, noisy and somewhat aggressive towards his elder brother, but the trial judge found that this was due to his having been spoiled at home. The risk of epilepsy developing was very small, Paull J., awarded him £2,250 general damages. The Court of Appeal reduced this award to £1,500.

In Owen v. Crone, (1962) C. A. October 25, 1962, reported in Kemp & Kemp, 3rd edition, p. 257, the plaintiff was a schoolboy aged 11 at the time of the accident in May 1960. The front of his skull by his forehead was broken severely; indeed, there were small bits of bone which were forced into part of the brain. A successful operation was performed and since then he has made a complete recovery. The forehead and head have completely healed and there is a safe bony covering to the brain. He was able to go back to school in the autumn of the same year, 1960, and has been at school ever since. He should be free of residual affects within a year of the trial save for a very slight risk of epilepsy. The Court of Appeal reduced the trial judge's award of £2,000 general damages to £1,000. [*911]

Having compared the present case with the cases above referred to, we have come to the conclusion that the present Plaintiff would be fairly and reasonably compensated, had he been successful, by an award of £1,500.

The Plaintiff proved £42 special damages: £20 to Dr. Messi, £20 for four bottles of blood and £2 for Hospital fees.

As the Plaintiff failed on the issue of liability, this Action is dismissed. In all the circumstances of the case we make no order as to costs.

Action dismissed;

no order as to costs.