Broken guard-rail at Kejetia Market: occupier, warning and contributory negligence
Madam Akosua runs a cooked-food stall on the upper deck of Kejetia Market, Kumasi. The deck is owned and managed by the Kumasi Metropolitan Assembly (KMA), which charges traders a daily toll. For three weeks a two-metre section of the wooden guard-rail behind her stall has been broken; she reported it twice to the market manager and, as a temporary measure, placed an empty crate in front of it with a card reading 'Careful - floor'. Kwame, a regular customer, leaned against the rail while bargaining, the rail gave way, and he fell four metres onto the concrete below, fracturing his wrist and damaging his phone. He admits he saw the card but thought it warned of a wet floor. KMA says it had no notice and that Kwame voluntarily took the risk. Kwame sues for negligence and occupiers' liability. The market's maintenance budget was cut by 40% that year.
1. Is KMA an occupier, and is Kwame a visitor owed the common duty of care? Explain how the Occupiers' Liability Act, 1962 and common law apply.
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Occupier and visitor
An occupier is the person who has a sufficient degree of control over premises; ownership is not essential (Wheat v E Lacon & Co Ltd). KMA manages the deck, charges tolls, and undertakes maintenance, so it is an occupier. Madam Akosua may be an occupier of her stall footprint, but not of the deck rail.
Kwame entered as a customer invited by a trader. He is therefore a visitor for the purposes of the Occupiers' Liability Act, 1962 (Act 172). The Act requires the occupier to take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited.
The duty is not strict. But KMA knew of the broken rail for three weeks, had two reports, and did nothing. A reasonable occupier would have barricaded the gap or repaired it. A 40% budget cut may explain the failure but does not lower the standard. The 'Careful - floor' card is ambiguous and does not identify the rail risk; a warning must be sufficient to enable the visitor to be reasonably safe. The duty is therefore likely breached.
2. KMA raises volenti non fit injuria and contributory negligence. Assess both, and state how the court should apportion damages.
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Volenti and contributory negligence
Volenti non fit injuria requires that the claimant, with full knowledge of the nature and extent of the risk, freely and voluntarily agreed to incur it. Kwame saw a card, but he did not know of the broken rail; he thought the warning related to a wet floor. Knowledge is not consent, and mere continued use of premises is not agreement to waive a claim. The defence should fail.
Contributory negligence is different. It asks whether Kwame failed to take reasonable care for his own safety and whether that failure contributed to the injury. Leaning heavily on an old wooden rail in a busy market may be negligent, especially with a crate and card present. The court is likely to find some contributory negligence, but not a high percentage, because the rail was there to be leaned on and the warning was misleading. A reduction of around 20–25% under the Civil Liability Act, 1963 is realistic.
If Kwame were a trespasser, the 1962 Act would not apply. The common law duty would be the Herrington duty not to treat the trespasser with reckless disregard for safety. KMA's knowledge and inaction could still satisfy that, but the analysis would be less favourable to Kwame.
3. Assume liability is established. Discuss the damages recoverable for the wrist injury and the damaged phone, including remoteness and mitigation.
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Damages
Once liability is established, Kwame can recover general damages for pain, suffering and loss of amenity from the wrist fracture. Special damages would cover proved medical expenses, transport, and lost earnings. The damaged phone is property damage. Under The Wagon Mound (No 1), the defendant is liable only for damage of a reasonably foreseeable type. A four-metre fall is very likely to damage items carried by the claimant, so the phone loss is not too remote; the extent of the loss need not be foreseen.
Kwame must mitigate: he should attend treatment and not run up unnecessary expenses. Any contributory negligence percentage reduces the total award. The court should avoid double recovery: the phone award is its market value or repair cost, not both. The 40% budget cut does not increase damages; it is relevant only to breach.