MATTER DEFERRED

Bay of Plenty Beacon, Volume 2, Issue 191, 26 July 1940, Page 5

MATTER DEFERRED

.0. — THE OHOPE SWIMMING POOL PROJECT SOLICITOR'S OPINION ON COUNCIL'S LIABILITY At the last County Council meeting it Avas agreed that a legal opin ion should be obtained on the question of the Council's liability if sanction were given to the crccti'on jf a swimming |)00l on Council projarty at Ohope. At the same meetng Gr H. C. McCready gave notice >f motion seeking the rcscinsion of >revious resolutions adopted by the Council, which were to the effect

that no support be granted. Before Gr McCready's motion was heard, the Clerk read an opinion on liabilities presented by Mr T. E. Hamerton. Answering the question "What is the extent of the Council's liability for injury due to neglig-f gnce, if the pool were administered and controlled by the Council,'- Mr Hamerton advised that the Council would be subject to the ordinary common law ol liability for neglig-

ence (or tort), and in the event of an accident or other personal injury happening in or about the swimming baths' which could be proved to have resulted from or been attributable to any negligence or fail ure to use proper care on the part of the Council, then the Council could be ■ l-entlered liable in damages to the person injured, or, if such injury caused death, to the dependants of the dead person. Responsibility of Custodfan. In the management of the bathsj.

All Lilt; iu(lll«jsviiiv/**v v-a. y the Council would, no doubt require to employ a servant or custodian, and the Council would be liable for the negligence or other tort of any such servant or custodian when put porting to act in the course of his duties, including negligence resulting from the manner in which he executed his authority. It is no ile«fence for the Council to show that the tort would not have been committed if the servant or custodian had not exceeded his instructions, [f the Council puts the custodian? into a position to do a particular class of acts, the Council must accept responsibility for the manner in which the custodian conducts himself in the performance of his luties.

Possible Examples. Possible examples of negligence ire:'(a) Allowing water to become polluted, resulting in the contraction of some disease; (b) failure to ;cep dcptli notice boards displayed n shallow water; (c) failure to teep a reasonable watch on young children bathers resulting in drown

Lng (it having been held that mere warning of clanger is not sufficient in the case of one too young to profit by it). "I would also point out the gern eral liability in regard to accumulated water —namely, an occupier who brings or collects water on his property for a special purpose must keep It ; at his peril and no proof of negligence is required if Avater escapes and damage ensues to neighbouring pi-operty unless the damage is caused by the injured person'?,

)\vn default, by Act of God or by vrongful interference of a Strang:r," the report continued. The Alternative Question. Discussing ~ the alternative question "What is the extent of the( Council's liability* in the event of such swimming bath premises beng leased by the Council to a third person?" Mr Ramerton advised that :he position was that subject to e'er :ain exceptions dealt with below, the Occupier or Tenant is the person upon whom liability for neg j igence falls. Halsbury Vo. 23 at page fiOf puts :he position as follows: "The dJuty >f the occupier of premises on vvhieh the invitee comes, is to take 'easonable care that the premises ire safe, and to prevent injury to the invitee from unusual dangers tvhich are more or less hidden, .of vvhose existence the occupicr is aware or ought to h§ve been aware, 3r in other words, to have his pre-

mises reasonably safe for the us't that is to be made of them. If thii duty is neglected an invitee who is injured thereby can recover damages in respect of his injuries. To Avoid 1 Risk. As between the Owner and Lessee the general rule is that a landlord owes no duty either to his tenanl or to third persons who enter on the premises during the tenancy to take care that the premises art safe provided always that the own er has not retained full or partial

control, or interfered in the control,, of that part of the premises where the accident happened, and that the owner has not by hi si own actor omission created the actual danger from which the accident (For instance in this case, the Coun cil should ensure that depth notices arc properly displayed and that alt other necessary safety measures have been taken at the time of hand ing over the premises to the lessee) Furthermore to avoid risk of lia-» bility, the Council must hand over to the lessee the full and complete control and management of the bath premises, and the relationship of landlord and tenant (and not merely owner and licensee) must exist. There should be a definite lease (under the provisions of- the Public Bodies Leases Act 1908) ' which should contain all necessary covenants by the lessee "to take proper care" and to indemnify the Council against liability. Question of Indemnity. Halsibury Volume 23 at page 599 says: "A landlord who lets land for purposes which may involve danger to persons coming on to it, will not necessarily escape liability unless the letting is a bona fide contract, of tenancy which results in the tert ant and not the landlord being in occupation of the premises where the danger is encountered." "As a further precaution and in view of the Council's position as a Local Body, I Recommend that any lessee should be required to effect an-indemnity cover or bond in favour of the Council— particularly as the late Mr lustice Salmond in the sth Edition of his work on Torts at page 264 recognises that the position as to landlord's "liability, is-still not entirely free from doubt," Mr* Hamerton concluded. Cr McCready said that, in view of the legal opinion, he would ask the Council to defer the motion he had proposed to table, in order to give him an opportunity to bring the report before a meeting of Ohope residents. The notice of motion was accordingly renewed.