This article is written by Shoronya Banerjee from Amity University, Kolkata. This article talks about the Occupiers Liability Act, 1957 along with the support of several case laws.
The Occupiers’ Liability Act, 1957, enacted in England, simplified the confusion to decide upon the liabilities of an Occupier. The nature of obligation varied in conformity with the persons and the premises. Firstly, towards a person residing outside the premises. Secondly, duty arising towards a trespasser or, in other words, a person entering the premises, and in the third case, the obligation rising towards children. A claim under Occupier’s Liability Act works similarly to the claim for negligence. A breach of duty and duty of care has to be shown alongside the damages resulting from such a breach of duty.
English Law set forth a distinction between the visitors to a land and persons on a land. This Act, therefore, imposed a common duty of care on an occupier for his visitors under Section 1 of the Act. This law annuls common-law categories and establishes the aspect of all lawful visitors deserving a certain degree of duty of care. Currently, Occupiers Liability Act 1957, imposes an obligation on occupiers towards ‘lawful visitors’, whereas the new legislation known as the Occupiers Liability Act 1984, imposes liability on occupiers with details and specifications going much beyond the lawful entrants, concerning persons other than his lawful visitors.
The Occupiers Liability Act, 1957
The Occupiers’ Liability Act 1957 imposes a statutory duty on the occupier of a premise, owner of a land or a person who has sufficient control over land, to owe a certain degree of duty of care towards its lawful visitors, under Section 1(1) of this Act. This statute covers personal injury as well as damage to property. Section1(2) goes further to regulate the working of the consequences of a person’s work or ownership of premises and the invitation and consent given by him to others for utilizing the premises. But in no way can the rules of the common law be altered as to who is the occupier or to whom the duty of care is owed.
It is extremely important to clear out certain concepts before delving deep into the statute. The first question looked into is, ‘who is an occupier?’ While not putting forth a clear, specific, and substantial definition for the word ‘occupier’, the application of common law and series of precedents established the meaning of an ‘occupier’. In the case of Harris v Birkenhead Corporation (1976), there was a property to which the Birkenhead Corporation had not issued any notices for shutting down as the tenant had left without informing the local authority, as a result of which vandals had entered the place and broken the windows. The plaintiff had filed for a suit against Birkenhead Corporation for damages of her personal injury suffered at the age of four as a result of falling out of the second-floor window. It was held that with their right asserting their control over the property showed that they were the legal occupiers and therefore liable for the damage caused. This case had established the definition of the occupier as ‘a person who controls; to a sufficient degree the land in question. Also, in the case of Wheat v. E Lacon & Co. Ltd (1966) the manager of a pub had lent room on a premise that he wasn’t the owner of. But by agreement, the manager could stay in one of the flat above the public house and assign paying guests accordingly. The defective staircase had led Wheat to fall down the stairs and fatally injure himself. The question of who is an occupier was extremely important in this case and it was established that the occupier was the one with a sufficient degree of control over the premises and thereafter owed a certain duty of care towards the legal entrants.
Therefore, as the act paid so much of heed the lawful visitors it was extremely important to highlight the scope of lawful visitors, which involves:
- Lawful visitors with express permission involves those who get express invitation and permission of the occupier to enter premises, who are also known as invitees, but such invitation could be limited by the occupiers in terms of place or time. Someone who went against such laid terms would be considered a trespasser under the Occupiers Liability Act, 1957.
- Implied permission would mean no express permission but not objected by the occupier either. For instance, in case of repeated visits, if someone continues to visit and use one’s premises without permission but the occupier even after knowing about it does not raise any objection, then that is implied consent or permission.
- As put forth by Section 2(6), people entering premises with legal rights have to be considered to have received permission from the occupier.
The third aspect is that of defining ‘premises’, which varies as per scenarios. For instance, in the case of Wheeler v. Copas (1981), the defendant, a farmer, wanted to build a house on his farm. They had agreed upon a contract only involving labour and the defendant had to provide with the equipment and materials. While working, the plaintiff used a ladder, fell and got injured, and thereafter, sued the defendant for damages. But, it was held that the defendant was not liable as the defendant could not have been considered to be an occupier after handing over the materials and equipment to the plaintiff. The plaintiff should have realised the fault in the ladder before beginning his work. Somewhere in this way he also got involved in contributory negligence.
Liability taking on different forms concerning different situations and circumstances puts for the framework of the objectives of the Act. It deals with the liability or obligations towards lawful visitors, trespassers, and children.
Duty owed to lawful visitor
The range of the occupier’s ordinary duty within the scope of Section 2(2) of the Act upheld the occupier’s “common duty of care”, to all his visitors. It is his duty that in all circumstances, he has to see that the visitor is reasonably safe in using his premises for certain objectives whose fulfilment got him invited or gave him the permission of the occupier. The characteristics of this visitor also have to be kept in mind. For example, to differentiate between a normal person and a skilled worker, the expectations have to be placed accordingly. The extent of this statutory duty as a whole is considered to be synonymous with that arising under the general common law of tort. Thereafter, he could not be held liable for any accidents caused due to work organised by independent contractors, given that the occupier had acted reasonably and given the contractor certain work after being sure and aware of the contractor’s competency and that the work had been completed properly.
It was seen in the case of Geary v JD Wetherspoon plc (2011), a Victorian building had been transformed into a pub in Newcastle and it consisted of a grand open staircase with vast and extensive bannisters on both the sides. Mrs Geary had once visited the pub with her colleagues for a drink or two. According to Mrs Geary, the bannisters really attracted her, reminding her of the film, Mary Poppins. When they were eventually leaving the pub, they all decided to slide down the bannisters which eventually resulted in a situation where Mrs Geary fell over, suffering a fractured spine leading to tetraplegia. Mrs Geary sued the pub for being ignorant towards initiating steps for preventing such an accident as it was foreseeable with the earlier records of such customers facing similar accidents. Even Though the court held that she wasn’t drunk, the mere fact of her acknowledging her sense of knowing the obvious risk involved led to the dismissal of her case. The court could not protect someone who had chosen to take such a risk and be the creator of such a misfortune.
Common-law divides lawful visitors under two heads, the invitees and licensees. In the case of Indermaur v. Dames (1866), the plaintiff had entered the defendant’s premises with permission for examining a gas regulator. During this process, he fell through an unfenced opening on the floor and thereafter injured himself. This case established three categories, trespassers, licensees and invitees, treated differently in accordance with common law. Later, a fourth category of contractual entrants were introduced as well.
Therefore, a licensee enters premises with the owner’s express or implied consent, for his own purpose. It is the duty of the occupier to make the licensee aware of any latest problems or defects. He also has a duty of not intentionally or maliciously hurting him. But the occupier is not liable if he himself was not aware of such danger. While on the other side in case of an invitee, the occupier is required to take the highest degree of care. He would be liable even for an unusual danger that he was aware of or had an obligation of knowing about it.
Duty of care towards trespassers
A trespasser, a person entering the bounds of a space of the occupier without his consent still owes a duty of care from the occupier covered by the common law and the Occupiers Liability Act, 1984, but not under the Occupiers Liability Act, 1957. However, if such an entry was not objected to by the occupier then that would indicate implied consent, giving the right of the licensee to such visitors. Although an occupier is not deemed to make his premises open and safe for the trespassers, he still cannot do something purposely for causing an injury to such an entrant. The occupier can instil reasonable methods for preventing entrance of trespassers but does not have the right to cause an intentional injury for no reason. The harm of the trespasser entering the vicinity of the occupier’s premises would expect the occupier offering some protection. The damage to a property that had been brought by the trespasser inside the premises of the occupier does not allow the trespasser to claim for such damage.
The occupier of the premises owes a duty of ordinary care, that is reasonable warnings issued by some sort of an indication or board making the person aware of taking such a risk of entering as such trespassers could also include children who by some reason or allurement could want or try to enter such a property. The Occupiers Liability Act, 1984, was enacted in addition to this to extend the occupier’s duty of care towards trespassers.
Initially, the matter of children being considered under the subcategory of a trespasser had become a matter of debate with further clarity brought in by case laws and precedents in a matter of years. For instance, in the case of Robert Addie & Sons (Collieries) Ltd v Dumbreck (1929), a field belonging to a colliery company, surrounded by large hedges, had a haulage system situated in it. The gaps between the hedges had been done away with the essential purpose of marking away land and preventing entry. Children would often enter and play in it. It was also known to be a shortcut to a local railway station, and the colliery company was aware of it and had often tried to warn people about it. One day, getting crushed by the system, a four-year-old boy got killed. The father of the boy filed a case against the company. But it was held that the boy was a trespasser, who at his own risk had entered the premises of the colliery and so the company owed no duty of protection against him or trespassers. But progressing times, changing Victorian attitudes and more focus on concerns on humanitarian grounds for the common welfare of the people brought in the concept of common duty of care towards every person, even trespassers. The factors determining the occupier’s liability, action to prevent harm, availability of insurance etc, were upheld to see the relationship between the occupier’s conduct and injury caused further.
In the case of Mourton v. Poulter (1930), the defendant, a landowner, being aware of possible children trespassing, began cutting an Elm tree nearby without warning the children. This in turn injured a child standing near it. It was held that the defendant was liable for the injury of the child and he had acted negligently.
Obligation towards children
In the case of Melendez v. City of Los Angeles (1957), the plaintiff’s son, eleven years old Daniel, allured by a pool in the defendant’s premises, had drowned in it because of its prevalent dangerous conditions. The pool was a resultant of drained storm-water. The clogged storm-water had covered a deep hole that was beyond the knowledge of the children. The defendant could have found a remedy to such dangerous conditions but leave aside remedy, no warnings, guards, or protection was given either. The second cause of action was also that Ralph, thirteen-year-old brother of Daniel had also drowned in his attempt to save his brother. It was cited that the possessor should know or be aware of what involved an unreasonable risk of death and bodily injury especially in case of children, as children would not be able to figure out the risk of going near such a place. But also maintenance of a body of water was decided to not give rise to liability as children even of ten years age had to be aware of intermeddling with water.
Similarly in the case of Nitin Walia vs Union Of India And Ors (2000), the three-year-old, excited and overjoyed on visiting the National Zoological Park, Delhi along with his family, got crippled as the result of an unfortunate incident of the tigress having pulled out his hand by biting on to it. The zoo authorities were held to be liable as they could have easily instilled iron mesh on the rods to avoid such a situation. They had to pay damages and the child was not held for contributory damages.
Therefore, the Occupier’s Liability Act, 1957 puts forth that the occupier has to be more careful while dealing with trespassing children than adults. Therefore, the occupier has to take reasonable steps to prevent the child from any danger. Children have to be protected from dangers, which adults don’t need protection from, because the child is not capable of forming decisions and taking steps to act in that moment, where the adult can perfectly and immediately do in that particular situation or circumstances.
Liability in tort
As highlighted by Section 2(2) the Act, an occupier taking in consideration all circumstances of a case that is within reasonable foresight has to keep his visitor safe within the bounds of the premises. In the case of Lowery v. Walker (1911), the defendant being aware of common people crossing a field, put his savage horse who was potentially harmful to other people grazing on that field. The plaintiff, while crossing the path, was attacked by the horse. The plaintiff sued for the injuries caused to him. It was held that the defendant was liable as he did not undertake any action for making people aware and prevented them from taking that path. Even though the plaintiff did not have permission to be on his land, since the defendant was aware of such activities it had indicated implied permission.
Section 2(3) putting forth the accepted idea of considering children to understand less and be less careful than adults for which the occupier would always have to be careful was reflected in the case of Phipps v Rochester Corporation (1955), where while crossing a building site a five-year-old had fell in a trench and had broken his leg as result. These children crossing this site were locals and the authorities even after becoming aware of their daily movements did not take any step to prevent it. Therefore, the children had implied license to play on those grounds. However, it was held that the parents worrying about protection wouldn’t leave them unaccompanied, so the developer did not have a duty to reduce the danger. The responsibility was of the parents.
There was a known case of Grimes v Hawkins & Anor (2011) which had attracted substantial media coverage, concerning an 18-year old woman. After partying at a pub, the woman was invited to a party along with several friends. The householder’s indoor pool was extremely attractive, and therefore many people had got inside the pool during the party. The plaintiff had received a swimming costume from the householder’s daughter, who had accepted Ms Grimes as her visitor. Ms Grimes, a known swimmer, suffered left side paralysis and a neck injury while diving into the pool and subsequently hitting the bottom. It was held that this couldn’t be held as a breach of duty of the owner of the house, because the plaintiff had voluntarily done it. It wasn’t on the householder to prohibit adults from jumping into the pool and foresee such dangers.
Then as seen in the case of General Cleaning Contractors v. Christmas (1953), Mr Christmas, a window cleaner working for the General Cleaning Contractors, got his fingers trapped between two sash window frames after not seeing its chance of shutting randomly. He had lost his balance, fell, and suffered injuries. General Cleaning Contractors had appealed against liability as Mr Christmas was an experienced worker expected to be aware of the risk involved in such work. It was held that such window frames did have the potential to close unexpectedly and therefore, proving that employers had the duty of issuing safety guidelines. Employers should have taken reasonable care and should have provided for a safe system of work.
The case of Bowen & Ors v The National Trust (2011) brought forth a tragic incident where the claimant, a group of school children undertaking a risk, had visited the National Trust property at Felbrigg Hall in Suffolk which had the Great Woods with 250,000 mature trees. While under the guidance of a teacher, the children were following a trail, it suddenly began to rain. The children had taken shelter under a mature Beech tree, but the storm resulted in one huge branch falling on the children leaving one dead, and three injured severely. The plaintiffs held the National Trust liable for breaching their duty of care. But after being examined by the court, it was seen that the National Trust had taken adequate care, so much so that it had led the people to be sure of bringing the school children for a study there and letting them enjoy. The National Trust had undertaken steps to check upon the reasonable safety of the visitors.
Liability in Contracts
Where an occupier of certain premises is constrained by a particular contract for rendering permission to persons and strangers from entering the premises or land of the occupier, such person cannot be restricted or prohibited because of the presence of such a contract. A contract would only have effect when it would provide making an occupier oblige in front of strangers for taking reasonable care yet for faulty execution of certain tasks having to face dangers, even for his servants and people working under him as per his directions and control. Stranger, therefore, indicates a person not entitled to the benefits of the contract as a party or acting on behalf of a party.
Regarding tenancy, when a building is given on rent, the visitor is liable for any damages caused within bounds of the premises by his visitor. Section 3(4) makes the landlord or the tenant accountable, even if not by contract, to issue permissions to people for entering the premises for a particular reason or job. But this shall only apply if there exists a contract of tenancy between the landlord and the tenant. On the other hand Section 5 of the act highlights implied terms of a contract. The persons entering, using, sending goods and so on to any premises as per terms and exercise of rights bestowed by a contract along with a person having control of such premises, the duty that he would owe to them in respect of possible dangers due to certain conditions of the premises would depend on a term to be present or implied in the contract by showing it as a common duty of care. It is also held that this applies to fixed and movable structures as it applies to such land or property.
Some of the provisions that the act comprises are:
- Just like the principles of common law applying to an owner of an area and his visitors similarly the rules so enacted under this act would be applied. In the case of Section 1(3) it would regulate :
- The duty and accountability of persons owning, occupying, or with control of any moveable structure, which could also include any vessel, vehicle, etc.
- The duties of a person having control or owning premises or structures in association to damaged property belonging to people who themselves are not his visitors.
- Section 2(1) upholds the common duty of care that the occupier owes towards his visitors. Section 2(2) talks of a common duty of care to be such that it would ensure a reasonable guard for his visitor to be kept safe with such premises.
- The occupier has to consider that children are less careful than adults and that he has to ensure safety for people that he calls against any special risks.
- The occupier by agreement could restrict, modify, and so on the duty of care towards his visitors.
- Section 3(1) introduces the provision of contracts that bind an occupier to allow people, even strangers, on his premises. His duty of care towards these visitors cannot be barred, limited or excluded by the contracts. Under the contract, he is bound to perform his obligations and duties.
- Section 6 highlights the Crown to be bound by this Act but not the Crown’s liability in terms of tort, the Crown is liable in tort in accordance to the Crown Proceedings Act, 1947.
Evolving in the mid-19th century, the legal rules of occupiers’ liability in turn of its application following situations could turn out to be difficult in the current scenario. At certain times occupiers’ liability becomes incompatible with modern tort laws trying to establish negligence in case of duty of care even after reasonable foresight of harm that could be caused.
This whole law was developed at a point when the land was preferred over human life, for instance, as seen in case of obligation towards trespassers. The Occupiers Liability Act initially did not bear any duty of care towards trespassers. Property and premises were considered to be more valuable than human life. But with the common law reforms and the evolving times and changes in human understanding and behaviour brought in the true value of looking at everything on humanitarian grounds. Therefore, it can be said that modern tort law appreciates the presence of a balancing process, the balance that has to strike between the defendants and plaintiffs. The courts worked continuously to bring their views consistent with the modern views of striking a balance. The Act provides certain common defenses. The first being that of consent, where visitors even after being conscious tend to take such risks anyway. Second is the scenario where contributory negligence works against the visitor and the third is that of clauses applied by an occupier of a contract to escape liability.
The relevance of labour laws in India has been associated with the concept of an occupier alongside being utilized in matters of cases and judicial analysis. Pre 1987 saw the appointment of any employee responsible to look after affairs of a factory as an ‘occupier’ of the same. But the Bhopal gas tragedy changed the scenario resulting in demand for better work, responsibility, and accountability, which in turn redefined an occupier, making it necessary for one of the directors of the company taking up the role of an occupier. Occupiers Liability Act, 1957 was followed by the Occupiers Liability Act, 1984 with more specific details, covering private rights, dealing with trespassers or visitors breaching limitations set by the occupier for entrance. It put forth specific conditions before the involvement of the duty of care had to step in.
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