MARY LENNON Vs. PERCY FISHER

JUDGEMENT

(1.) His Lordship first discussed and set out the facts as summarised above, and then proceeded to discuss the law applicable to the case : Now coming to the main question of negligence. First of all, I may refer to the general statement of the law by Tindal C.J. in Sarch V/s. Blackburn (1830) 4 C.& P. 297 300: If a man puts a dog in a garden, walled all around, and a wrong-doer goes into that garden, and is bitten, he cannot complain in a Court of Justice of that which was brought upon him by his own act .Undoubtedly, a man has a right to keep a fierce dog or the protection of his property, but he has no right to put the dog in such a situation, in the way of access to his house, that a person innocently coming for a lawful purpose may be injured by it.

(2.) And the law is similarly stated in Halsbury's Laws of England, Vol. I, Article 818, p. 375. The case just cited also deals with the point of a notice being put up where a dog was kept, and it was held that it was not enough since the person bitten might not be able to read. That of course is not in point here, except that the same thing applies in regard to the defendant's shouting. The mere fact of his shouting would not be enough, if it was not actually heard by the person to whom the shout was addressed. The plaintiff undoubtedly was going to the defendant's on a lawful business and at a reasonable hour, and there is clear authority for saying that she was in the position of an "invitee" as the law phrases it. On this point it is enough to refer to Halsbury's Laws of England, Vol. XXI, Art. 655, at p. 388, and to the case of Pritchard V/s. Peto [1917] 2 K.B. 173. That was the case of a person going to collect a debt at another's house, and it was there held that he was an invitee. Coming to the law applicable in a case like the present, it seems to me that there is no better statement of the principles applicable than the law laid down in the leading case of Indermaur V/s. Barnes (1866) L.R. 1 C.P. 274. That no doubt primarily deals with what are called "trap oases", but a case like this is really on all fours. Putting a dangerous dog behind the door in a room is just as much a trap to an innocent passer-by as it there were a hole or man trap which might cause him injury. This particular passage in Mr. Justice Willes judgment is referred to by Lord Atkinson in Fairman V/s. Perpetual Investment Building Society (1922) 39 T.L.R. 54 57, as one which has for the last fifty-six years been accepted as a full and accurate statement of the law. It runs as follows: The class to which the customer belongs includes persona who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, upon his invitation, express or implied. And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall upon his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know, and that where there is evidence of neglect the question whether such reasonable cure has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer must be determined by a Jury as matter of. fact.

(3.) Accepting that as the law applicable, really there are three subsidiary questions. First, did the plaintiff herself use reasonable care, or, in other words, was she in any way guilty of contributory negligence ? Secondly, did the defendant use care against the unusual danger which he knew or ought to hare known of ? That involves the third question, whether he knew of the danger, a point which I have already found in the affirmative. So really the main question boils down to this, whether the limits of the invitation to the plaintiff to come to the defendant's premises were exceeded or not. Thus, as stated in Halsbury's Laws of England, Vol. XXI, Art. 657, page 390: The liability of the occupier is only commensurate with the extent of the invitation. Where, therefore, the occupier of premises has placed a notice warning persons of the existence of danger, and a person disregards the notice, or the circumstances show that the limits of the invitation have been otherwise exceeded, the liability is limited in a corresponding degree, and if the invitee wanders about in such a way as to be unable to see if there is danger or not, or if he knows of the danger and undertakes the rink, the occupier of the premises is not liable.