The Gazette 1992

GAZETTF

OCTOBER 1992

law, and the Lord Chancellor

referred the question of reform of

this area to the Law Reform

Commission. Their Report on the

issue

lead directly to the Occupiers'

Liability Act, 1957,

the effect of

which was to impose a "common

duty of care" upon the occupier in

respect of all lawful visitors, whether

invitees or licensees.

The 1957 Act left untouched the

law with respect to trespassers

"probably because Parliament in

1957 could not make up its mind

what to do, and not because

Parliament impliedly approved of

that law".

As a consequence, the 1957 Act

therefore left in place the line

between licensees and trespassers in

the guise of a line between lawful

visitors and other entrants. This

latter was as susceptible of

manipulation as was the former, and

the continuing vitality of the

Addie

doctrine that at common law the

occupier owed no duty to a

trespasser meant that the main cause

of this manipulation persisted.

However, in 1972 in

British Railways

Board

-v-

Herrington

the House of

Lords were invited to overrule

Addie.

In effect they did so, and instead

imposed a duty of "common

humanity" on the occupier in

respect of trespassers. The essence of

this duty was subjective

to the

occupier; it asked what should

that

particular occupier

have done in the

circumstances? Thus, for example,

the financial means of the occupier

were relevant in determining whether

he had breached his duty.

This

subjective approach differed from

the common law duty to take

reasonable care

and the duty under

the 1957 Act, since both of these

were objective, asking not what

should that particular occupier have

done in the circumstances but

instead asking what a

reasonable

occupier would have done in the

circumstances. The result of

Herrington

was that a duty was

owed by occupiers to trespassers, but

one which was easier to fulfil than

that owed to lawful visitors.

Addie,

despite all its faults, had one

advantage: it was certain. It was felt

that in bidding farewell to

Addie,

the

House of Lords in

Herrington

bid

" he l l o" to uncertainty, especially as

to the real meaning of the duty of

common humanity. Once again, the

issue of occupiers' liability was

referred to the Law Commission.

Once again, there was a Report

which lead in due course to

legislation, the Occupiers' Liability

Act, 1984. This Act imposes a duty

on an occupier who is aware of a

danger to an entrant (other than a

lawful visitor) against which in all

the circumstances of the case he may

reasonably be expected to offer the

entrant some protection to take such

care as is reasonable in the

circumstances to avoid the injury.

The result of the English statutory

reform is to create a structure in

which an occupier owes (i) a

"common duty of care" to a

"lawful visitor" under the 1957 Act,

and (ii) owes a duty to an entrant

other than a lawful visitor under the

1984 Act. The remainder of this

article is concerned with the details

of an occupier's liability for injury

to an entrant under the precise

provisions of these items of

legislation.

The Occupiers' Liability Acts, 1957

and 1984

The occupier's liability for injury to

an entrant will be analysed by asking

and answering the following

questions. For the purposes of these

Acts:

(i) Who are occupiers?

i.e.

who are

the potential defendants?

(ii) What are premises?

i.e.

what is

the nature of 'occupation' which

will give rise to "occupiers'

liability" on the part of those

potential defendants?

(iii) Who are the entrants?

i.e.

who

are the potential plaintiffs?

(iv) What duty does the occupier

owe to the entrant

i.e.

when will

the defendant be liable?

(v) For what damage will the

defendant be liable?

(vi) Are there any defences?

In answering these questions, it is

important to note that the Acts

effected real change only in respect

of the answers to questions (iii) and

(iv). Thus, section 1(1) of the 1957

Act provides that " The rules

enacted . . . regulate the duty which

the occupier of premises owes" and,

in effect, no more than that. In

other words, it is only the common

law with respect to duty which is

affected. In fact, the legislation

presupposes much of common law,

and expressly does not change it. For

example, section 1 (2) of the 1957

Act provides (in part) that the Act

shall

"not alter the rules of the

common law

as to the persons on

whom a duty is so imposed or to

whom it is owed; and accordingly

for the purposes of the [Act], the

persons who are to be treated as an

occupier and as his visitors are the

same... as the persons who would at

common law be treated as an

occupier and as his invitees or

licensees." For our purposes here, it

is sufficient to notice that the

definition of "occupier" to be

applied for the purposes of the Act

is the common law definition. This

is question (i).

(i) Who are occupiers?

Generally speaking, liability as an

occupier is based on his or her

occupancy or control, not on

ownership. The person who is

responsible for the condition of the

premises is that person who actually

has control of them since this is the

person who has the immediate

supervision and control of the

premises and thus has the power of

allowing or preventing the entry of

other persons.

As in most matters of application of

rules, it will always be a question of

fact in each case whether the

defendant actually has this control.

However, normally, a lessee and a

licensee with exclusive possession will

have such control, whereas the lessor

and the licensor without a right of

entry will not. But a "lease" of an

abnormally short duration

e.g.

the

hiring out of a dance hall for four

hours where the "lessor" retained

the right to provide refreshments

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