Accidents in Public and Private Places

Where the place is a pavement or a road, the statute that puts it in a municipality's hands is the Municipalities Law 52(I)/2022. Its section 2 defines a road to include a square, a street, a path, a cul-de-sac, a passage, a pedestrian way, a pavement or a public space, and section 43(2)(a)(v) places within a municipality's fields of competence the studies for the construction, maintenance, cleaning, lighting and use of roads, bridges, pavements, pedestrian ways and cycle lanes within its boundaries, control of their construction, alteration, closing or change of direction, and the prevention of any obstruction of their free use. That is the competence; whether it was breached on a particular day is still decided under Cap. 148 on the evidence. The Law lays down no special notice requirement and no shortened limitation period for a claim of this kind, so the ordinary position applies. A challenge to a decision of the authority is a different route altogether, with its own seventy five day period under Article 146 of the Constitution. And where the person whose acts or omissions cause a nuisance, or the owner or occupier of the premises, is unknown or cannot be found, section 127 allows the court's abatement order to be addressed to the municipality and executed by it.

The distinction between the owner and the occupier is worth settling early, because it decides both who the claim is against and whose insurer responds. In a leased shop or a rented apartment they are different people with different responsibilities, and each will point at the other.

There is a second distinction in the same section that decides how much is owed, and it is not widely known. Cap. 148 separates a person lawfully on premises from a bare licensee, and to a bare licensee the occupier owes no duty at all as to the condition, maintenance or repair of the property, beyond warning of a concealed or unobserved danger the occupier knows of or must be taken to know of. The section defines the term rather than leaving it to argument: a bare licensee is someone who enters lawfully otherwise than in connection with work in which the occupier has an interest, or in the lawful performance of a public duty, and it expressly includes guests who are not there for reward.

Which side of that line a person falls is therefore worth more than it looks. A customer in a shop, a hotel guest, a patient at a clinic and a member at a gym are not bare licensees, because they are there in connection with work in which the occupier has an interest. Someone visiting a friend, or crossing private land by permission, may be. Where you were going and why is not small talk when we take the details, and it is a reason not to describe your own visit loosely to an insurer before taking advice.

Communal areas in jointly owned buildings have a named answer. Section 38KZ(1) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, puts the duty to keep the common property in good condition and working order, and to maintain it, on the management committee. And section 38KST(2) provides that the committee may sue and be sued in respect of any matter concerning the common property or the common building, so it is capable of being a defendant in its own right. The claim of an injured resident or visitor is still a negligence claim under Cap. 148, decided on what the committee knew and what it did about it, which is why it matters whether anyone had complained of the same thing before. Tell us whether there is a committee and whether common expenses are collected. The firm's guide to common expenses and communal areas deals with how those buildings are run.

Where the thing that caused the injury was itself built, altered or extended, the permit position under the Streets and Buildings Regulation Law, Cap. 96 is a question worth asking. A staircase, a mezzanine, a balcony rail or a pool enclosure built without the permit that Cap. 96 requires is a fact about the premises that the occupier will already know and that a search may reveal. Two qualifications belong with that. It does not decide the claim, because causation still has to be proved. And section 4B allows the Minister, by reasoned order published in the Official Gazette, to exempt defined categories of structure from the requirement to obtain a permit at all, with a building so exempted treated as a permitted building, so the absence of a permit is a question to ask rather than an answer in itself.

The permit file for a particular premises is held by the Director of Development Licensing of the District Self-Government Organisation, and it can be asked for in writing. Under section 3(1) of the Access to Information of the Public Sector Law 184(I)/2017 any person may request information held by a public authority, and section 8(1) gives the applicant the right to be told in writing whether the authority holds what was asked for and, where it holds it and the information is accessible, to receive it. That route has a limit worth knowing before it is used: section 3(2) takes personal data outside the Law altogether, whether the applicant is the data subject or a third party, and sends it to the data protection legislation instead. Once proceedings have started the same material can also be sought by an order for discovery.