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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
11
lead directly to the Occupiers'
Liability Act, 1957,
12
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".
13
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
,
14
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
15
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.
16
This
subjective approach differed from
the common law duty to take
reasonable care
17
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
18
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.
19
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
304