care. is to his knowledge unsafe (a), or where he leaves a trap-door open in the floor of a dark passage which he permits others to use. By a concealed source of danger is meant one which is not apparent to a person who keeps his eyes open and uses ordinary The permission to use the premises may well be treated as involving a representation of the existence of that state of things which the licensee has a right to expect. "One who comes upon another's land by the owner's permission or invitation has a right to expect that the owner will not dig a pit thereon so that other persons lawfully coming there may receive injury" (b). Where the owners of a house with a private road leading to it permitted the defendant to stack some slates on a portion of the road, and the plaintiff's servant who was driving his master's horse and carriage to the house by night, not seeing the slates, drove against them and injured the horse, the defendant was held liable (c). And where a bale was nicely poised at the edge of a warehouse in such a position as to be likely to fall and yet to give no warning of danger to any one passing by the spot, it was held that this state of things was in the nature of a trap or concealed source of mischief, so as to render the owner of the warehouse liable to a bare licensee who was injured by the bale falling on him (d). But where the workmen in a Government dockyard were permitted to pass across a certain yard, in which the defendant, a contractor, had by the leave of the authorities erected certain machinery, including a revolving shaft, which shaft was partially but insufficiently fenced with planks, and the plaintiff, one of the workmen, while crossing the yard stumbled and fell against the shaft and was injured, the defendant was held not liable, on the ground that he was under no obligation to fence the shaft at all, and that in such fencing as there was the defect was not deceptive but apparent (e). "The danger was open and visible; there was nothing which could be called a trap”(ƒ). In an Irish case, where the action was brought under Lord Campbell's Act, the plaint, which alleged that the deceased was allowed the gratuitous use of a loft over the defendant's distillery to sleep in at night, that he used the loft under such licence, and that the defendants negligently permitted an aperture in the floor of the loft to remain open, whereby the deceased fell through the aperture at night and was killed, was held bad on demurrer (a); but the decision appears to have turned on a narrow point of pleading. "The aperture not being stated to have been concealed we cannot presume that it was other than open and apparent. The defendants are stated to have permitted the aperture to remain open. The deceased is stated to have used the loft for sleeping. The statement, therefore, negatives the fact of the aperture having been for the first time open when the deceased fell through it, and shows that he had previous means of knowing its existence" (b). From the stress thus laid on the fact of the deceased having had previous opportunity of inspecting the loft and discovering the existence of the hole, it seems clear that had the accident happened on the first occasion on which the deceased used the loft, the Court would have held the hole to be a concealed source of danger, inasmuch as it could not be actually seen, the loft being dark, and moreover was a source of danger not to be reasonably anticipated. Persons who go for the first time at night across an open common must not be surprised if they tumble into a pit or quarry (c), but no one expects to find a hole in the floor of a room (d). It was mainly upon the ground of this duty to warn a bare licensee of any concealed danger known to the licensor that the judgment of the majority of the Court of Appeal in Foulkes v. Metropolitan District R. Co. (e) proceeded. There the defendants, who had running powers over a line belonging to the L. & S. W. R. Co., carried the plaintiff as a passenger in a carriage which to their knowledge was unsuited to the platform at Richmond, a again the case was decided as if it were between the plaintiff and the owners of the yard. (a) Sulliran v. Waters, (1864) 14 Ir. C. L. R. 460. (b) Per Pigot, C.B., ibid., p. 475. C.T. (c) Hounsell v. Smyth, (1860) 7 C. B. N. S. 731. (d) See per Bramwell, B., Wilkinson v. Fairrie, (1862) 1 H. & C. at p. 634. (e) (1879-80) 5 C. P. D. 157. 38 Who are bare licensees. Negligent communication of infectious disease. station on the L. & S. W. line, and consequently dangerous to alight from at that place. The plaintiff, who was travelling with the return half of a ticket issued to him by the L. & S. W. R. Co., while alighting from the carriage at Richmond, fell in consequence of the carriage being so unsuited to the platform and was injured. It was held by Bramwell and Baggallay, L.JJ., that even assuming that the ticket issued by the L. & S. W. R. Co. did not create any contract between the plaintiff and the defendants, the defendants were liable to him in tort on the ground that "the combined arrangements were a trap or snare" (a). As towards trespassers indeed there is no implied representation of safety at all, and therefore no duty to warn of any concealed source of danger, but it is sometimes a matter of difficulty to determine whether a person is a trespasser or a licensee. It seems clear the invitation or licence to come on the premises need not be express (b); a licence will in many cases be implied. The existence of a private road leading to a house, being the usual mode of access to it, probably operates as an implied licence to any person living in the neighbourhood who might in the ordinary course be expected to call upon the owner to use it for that purpose. But it cannot be regarded as a licence to a passer-by to enter for the purpose of asking the way, nor to a hawker to come there for the purpose of hawking his goods (c), nor to a beggar to come there for alms. Such persons must be regarded as trespassers. Whether a person who, knowing himself to be suffering from an infectious disease such as small-pox or scarlet fever, negligently communicates such disease to another is in all cases liable to an action for damages is a question which cannot as yet be regarded as definitely decided. But it is apprehended that he is so liable (d). There seems to be a legal duty not to do any (a) As to whether the existence of an infectious disease upon premises is a concealed danger of which the licensor is bound to give warning, see below, p. 495. (b) White v. France, (1877) 2 C. P. D. 308. (c) See per Bovill, C.J., Smith v. London & St. Katherine Docks Co., (1868) L. R. 3 C. P. p. 332. (d) By s. 68 of the Public Health (London) Act, 1891, any person who when suffering from any dangerous infectious disease wilfully exposes himself, without proper precaution against spreading the disease, in any public place, is liable to a fine not exceeding 34. unnecessary act which would have the effect of directly communicating such disease. Indeed it seems difficult to distinguish upon principle the act of negligently communicating an infectious disease from that of negligently causing a person to absorb a poison of any other kind. In Davies v. England (a) a count was held good which alleged that a master who, knowing certain carcases of slaughtered cattle to be diseased and infectious, employed the plaintiff who was ignorant of their infectious condition to cut them up, whereby he was infected. In that case there was no doubt a contractual relationship between the parties, but it is conceived that the existence of that relation is not essential to the creation of the duty. In Hegarty v. Shine (b) a woman sued her paramour for communicating to her a venereal disease. It was held that the action would not lie on the ground that the case fell within the maxim ex turpi causâ non oritur actio. As that is apparently the only case in which that maxim has ever been expressly applied to an action of tort, the Court would presumably have avoided so novel an application of it if they could have done so by deciding the case on other grounds. It is to be inferred from the grounds upon which they proceeded that they would have held the negligent communication of any infectious disease, not involving an act of immorality, to be actionable. Lord Hale indeed in his Pleas of the Crown said that if a person suffering from an infectious disease" goes abroad to the intent to infect another, and another is thereby infected and dies, whether this be murder or not by the common law might be a question," and he apparently rested his doubt upon the ground that "it is hard to discern whether the infection arise from the party, or from the contagion of the air" (c). Having regard to the state of medical knowledge in his day, that doubt may well have been justified; and for the same reasons it may be doubted whether, in the event of the disease so communicated not proving fatal, a civil action for damages would have lain at that day. But now that the periods of incubation of the various infectious diseases are sufficiently determined to allow of the precise date of the contraction of the disease being Communica tion of disease must be result of a positive act done. fixed with reasonable certainty, the ground of Lord Hale's doubt is to a great extent removed. It is submitted that at the present day if a person wilfully infects another with intent to kill, and the other dies, such act of infection is murder; that if the act be done negligently and without intent, and the infected person dies, it is manslaughter; and that if, whether the act be done intentionally or negligently, the infected person recovers, an action on the case lies for the injury so caused. If an owner of a house knowing it to be infected invites another to come there, the fact of the infection is a concealed danger or trap which, it is presumed, he is as much bound to disclose as he is to disclose the existence of an unfenced hole in the floor. So if a surgeon in performing an operation uses a knife which he knows to be infected, or if a person who knows himself to be suffering from an infectious disease shakes a friend by the hand, if damage ensue an action ought to lie. In R. v. Vantadillo (a) it was held to be an indictable nuisance to take a person who was suffering from small-pox through a public street, from which it follows that a person who suffers special damage from such an act would have a right of action (b). It need not, however, be inferred that the right of action is confined to cases in which the act causing the communication of the disease amounts to an act of nuisance. In the latter case of Reg. v. Clarence (c), Stephen, J., indeed suggests that it is only in such cases that the act is indictable (d). But he was there dealing with cases of communication of disease not resulting in death, which, unless they amount to nuisance, cannot be brought within any of the well-defined categories of crime, for the act of communication does not amount to an assault; he did not apparently intend to negative the proposition that such act of communication, if it resulted in death, would be indictable as manslaughter, or if it caused damage other than death, would be actionable, even though committed towards a single individual in a private house. But even if the above view be correct, that a person who knowing himself to be suffering from infectious disease negligently (a) (1815) 4 M. & S. 73. (b) And see 38 & 39 Vict. c. 55, s. 126; 54 & 55 Vict. c. 76, s. 68. (e) (1888) 22 Q. B. D. 23. |