Liability of an Occupier of Land to Visitors

Land Law

How far had the common law liability of an occupier of land to visitors and other entrants (including trespassers and others) been enhanced by statutory provisions? Are the personal characteristics of the entrant (such as age) now of crucial importance in determining liability of an occupier to visitors and trespassers?

The liability of an occupier of premises to those entering upon his land is now regulated almost entirely by the Occupiers’ Liability Acts 1957 and 1984. There is nothing to be found in those statutes which is alien to the duty of care imposed by the common law. Indeed, as will be seen, much of the language is familiar. However, the statutes represent a strengthening of the previously existing duties. A consideration of the progress of the law in this area from the common law through to 1957 Act to the 1984 Act reveals a progressive broadening of the scope of an occupier’s responsibility.

The authors of Markesinis and Deakin’s Tort Law^[1] are somewhat cynical in respect of the original common law position:

“The philosophy of the common law before it was reformed and (largely) rendered in statutory form, was the preservation of the freest use and enjoyment of land by the occupier – a cherished idea to the land-owning class in England during the period when these ideas were being developed.”

It is argued that this led to a philosophy which defined an occupier’s duty by reference to the nature of the entrant upon the land (and, in crude terms, the extent to which that person was welcome) rather than by reference to the risks posed by the characteristics of the land and the duty of the occupier to foresee and guard against such risks. This gave rise to the development of different degrees of duty. The most stringent was that owed to contractors since the duty owed to them was based upon an implied warranty that the premises were fit for the purpose of fulfilling the contract. A lower but nonetheless significant duty was owed to invitees, for example customers of a shop, since the occupier derived a benefit from their presence. In respect of such invitees, the duty was defined in Indermaur v Dames^[2] as to “use reasonable care to prevent damage from unusual danger which [the occupier] knew or ought to have known”. Lower down the scale came those who were not invited but whose presence was tolerated – licensees – in respect of whom the occupier was only obliged to warn them of any concealed danger of which he actually knew. At the proverbial “bottom of the pile” came those who had no authority (express or implied) to be on the land – trespassers – to whom, until the watershed of Herrington (below) and the intervention of the 1984 Act, no duty whatever was owed.

It is interesting to note that other jurisdictions have eschewed the distinctive development of the duty of an occupier to so high a degree as that which is to be found in English Law. In Scotland, the Occupiers’ Liability Act 1960 does not distinguish between visitors and trespassers and in Australia the protection of the common law is regarded as sufficient without more:

“It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation f premises and the manner of the plaintiff’s entry on them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there is the necessary degree of proximity of relationship.”^[3]

However, this has not been considered sufficient in this jurisdiction and specific provisions have been developed. Section 2 of the Occupiers’ Liability Act 1957 imposes upon the occupier a ‘common duty of care’ to all his visitors. This is defined by s.2(2) as “a duty to take such care in all the circumstances of the case as is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. This statutory reform therefore removed the distinction between contractors, invitees and licensees replacing these categories with the “visitor” who was “invited or permitted” to be there. However, the emphasis upon “invitation or permission” perpetuated and possibly even strengthened the distinction made in respect of trespassers. This was possibly an attempt (albeit ultimately unsuccessful) to prevent attempts to push at the boundary between lawful and unlawful entrant. In Edwards v Railway Executive^[4], children from a neighbouring recreation ground had for a number of years been accustomed to climb through a fence and slide down a railway embankment. Lord Porter granted the plaintiff the benefit of the doubt in holding that the prevalence of the practice may have constituted knowledge on the part of the railway authority of the presence of children on their land but concluded:

“…the suggestion that that knowledge of itself constitutes the children licensees, in my opinion, carries the doctrine of implied licence much too far, though no doubt where the owner of the premises knows that the public or some portion of it is accustomed to trespass over his land he must take steps to show that he resents and will try to prevent the invasion.”

In so deciding, the House of Lords perpetuated the traditional hostility of the common law towards trespassers. In Addie & Sons (Collieries) v Dumbreck^[5] it had been forcefully asserted that an occupier was not liable for injury to trespassers unless he acted intentionally or recklessly and, as late as 1964, this rule was affirmed in Commissioner for Railways v F.J. Quinlan^[6] but the tide of public opinion was turning. Victorian attitudes toward the sanctity of property were becoming mitigated by humanitarian concern for the welfare of the individual. In 1968, the Supreme Court of California held that the common duty of care was owed to all persons who entered upon land even if they were trespassers^[7]. It was held that the factors which ought to determine the liability of an occupier should include the connection between the injury and the occupier’s conduct, his moral blameworthiness, the need to prevent future harm and the prevalence and availability of insurance. The identification of insurance as a factor is significant since it can have no bearing upon the rectitude or otherwise of the conduct of the occupier; it is perhaps a pragmatic recognition of the fact that the perceived injustice of holding an occupier to account in respect of those who have no permission to enter his land is mitigated by the fact that the burden of compensating one thus injured will fall primarily upon the insurer and not precipitate the financial ruin of the occupier.

The landmark case of British Railways Board v Herrington^[8] gave expression to this trend. The plaintiff, aged 6, was electrocuted on a railway line after passing through a gap in a fence. It was found as fact that the local stationmaster was aware of the condition of the fence and the fact that children were in the habit of passing through. The House of Lords were prepared to take the innovative step of holding the defendants liable notwithstanding the fact that the plaintiff was a trespasser. Lord Pearson (at 929) referred to changes in socio-economic conditions and declared that the time had come to extend more compassionate treatment to trespassers. Clearly, such a decision could not sit easily with the 1957 Act.

Accordingly, Law Commission Report No.75^[9] was followed by the Occupiers’ Liability Act 1984. Section 1(3) provides:

“An occupier of premises owes a duty to another (not being his visitor) in respect of [risk of injury by reason of the state of the premises] if-

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger…;

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.”

These criteria have been criticised^[10] as ambiguous. While the reasonable expectation test in (c) is objective, the requirements of (a) and (b) are subjective. In White v St Albans City and District Council^[11], the Court of Appeal held that an occupier who had taken steps to exclude the public from his dangerous premises should not, by virtue of that very fact, be deemed to have the requisite knowledge that persons were in the vicinity as required by s.1(3)(b). This should depend on all the circumstances of the case including the state of the land. Thus where a fence is known to be defective and used by children to gain access as in Herrington, the requisite knowledge will be more readily found.

While it might be argued that in certain respects (with the exception of trespassers) statute does little more than restate and clarify the common law approach, there is introduced an express emphasis upon the personal characteristics of the entrant. Section 2(3) of the 1957 Act provides:

“(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”

In taking the characteristics of children into account, the fact that they might be tempted to behave in ways which would not be expected of an adult is a factor which must be recognised. Thus, even in Glasgow Corporation v Taylor^[12], a case decided long before the express provision of the 1984 Act, a local authority was held liable to a 7 year-old boy who died as a result of eating poisonous berries from a bush in a public park. Although this boy was plainly not a trespasser, it could be argued that he was acting similarly unlawfully by taking the berries from the bush but as was observed by Hamilton LJ in Latham v R. Johnson & Nephew Ltd^[13], “in the case of an infant, there are moral as well as physical traps. There may accordingly be a duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation. The extent of the duty will vary according to the age and physical characteristics of the child. In Moloney v Lambeth Borough Council^[14], a 4 year-old child fell through the bars of a balustrade. The occupier was held liable on the basis that since a child of that age was liable to fall through gaps of that size, the occupier had not discharged its duty of care. However, this should not be taken to mean that children will invariably succeed in establishing a breach of the occupier’s duty by reason only of their tender years. In B v McDonald’s Restaurants Ltd^[15], a child was injured by a hot drink. It was found, however, that the vast majority of purchasers of such items would be of at least teenage years and therefore well aware of the dangers of such products. Accordingly, the failure to post a warning was not found to be a breach of the occupier’s duty notwithstanding the fact that the claimant was a child. In Phipps v Rochester Corporation^[16], the 5 year-old plaintiff was injured by falling into a trench the dangers of which would have been obvious to an adult. It was found as fact that children frequently played on this particular piece of land and that the defendants had taken no steps to prevent them. Devlin J held that in assessing such situations, the habits of prudent parents should be taken into account. In Simkiss v Rhondda Borough Council^[17], a 7 year-old girl was left by her father to picnic on a steep slope on land belonging to the local authority. She was injured when trying to slide down the slope. An action based on the failure of the local authority to fence the land and/or warn of the danger failed on the basis that the father did consider leaving his daughter in such a situation to be dangerous and it would not therefore be reasonable to expect a higher standard of care from the occupier.

The other aspect of the personal characteristics of the entrants is that expressly provided for by s.2(3)(b). The duty of an occupier may well prove less rigorous in the case of a visitor who is a specialist of some description where the risk to which he is exposed is that which is “ordinarily incident to his calling”. It might be argued that this is an interesting aspect of the previous common law situation in respect of contractors discussed above. Just as contractors were owed the highest duty by the occupier on the basis of an implied warranty as to the fitness of the premises for the purposes of the contract, there must be a corresponding and countervailing responsibility on the part of the contractor to ensure that he approaches the performance of the contract and his actions on the premises in a similarly professional fashion. This principle is illustrated by the leading case of Roles v Nathan^[18]. The plaintiffs were chimney sweeps working upon flues which had been sealed. They had been expressly warned of the dangers of working upon the flues with the fires lit but had been doing so in the presence of the defendant’s manager and a boiler engineer. They returned later to continue working in the same way and were killed by carbon monoxide fumes. Thus, the occupier was clearly aware of the dangers to which the plaintiffs were subject. Lord Denning MR refused to hold the occupiers liable since the plaintiffs possessed the characteristics of expert chimney sweeps:

“These chimney sweeps ought to have known that there might be dangerous fumes and ought to have taken steps to guard against them…it was not for the occupier to do it, even though he was present and heard the warnings.”

However, although Lord Denning pointed out that this case was the first opportunity that the court had had to consider the 1957 Act and although, as has been observed above, the exemption in respect of skilled contractors was expressly introduced by that Act, it might be fallacious to argue that this represented the introduction of a new principle rather than a restatement of an existing common law principle. In General Cleaning Contractors Ltd v Christmas^[19], a case which predates the Act, the plaintiff window cleaner was standing on the outside of a wall and holding a window sash to support himself. While he was doing so, the other sash came down on his fingers and he fell to the ground sustaining injury. He failed in his action against the occupiers because he was injured in the pursuit of his calling as a window cleaner. Had he been injured in some other way as a result of defective premises, his personal characteristics and skill as a window cleaner would not have negated the occupier’s responsibility toward him.

However, just as in the instances of children of tender years discussed above, it should not be supposed that the possession of such special characteristics will absolve the occupier of responsibility in every case. In Salmon v Seafarer Restaurants^[20], a fireman who entered a fish and chip shop to extinguish a fire was injured as a result of an explosion caused by leaking gas. The occupier attempted to argue that the risk of such an occurrence was ordinarily incident to the fireman’s calling and that any duty owed by him in such circumstances was limited to guarding against “special, exceptional or additional risk”. The court refused to accept this argument holding that although the fireman’s special skill was a factor to be taken into account, his possession of such skill did not absolve the occupier of liability where injury caused by negligence was reasonably foreseeable. While it might be argued that this does not represent a dilution of the principle of the 1957 Act since the damage caused to the fireman by explosion was not a risk obviously incidental to his calling (such as, for example, burning), an alternative interpretation of this decision is that it betrays a preference on the part of the courts to fall back upon ordinary common law negligence principles rather than regarding the statutes as advancing the law (and thus modifying the duties owed) in the specific case of occupiers of premises.

In conclusion, therefore, the extent to which the common law liability of an occupier of land to entrants has been enhanced by the Occupiers’ Liability Acts of 1957 and 1984 is questionable. The 1957 Act may be said to have consolidated the former classes of contractor, invitee and licensee into the generic category of ‘visitor’ but an examination of the authorities and the operation of the law before and after the enactment of that legislation reveals that the principles applied in practice are little changed. The most apparently obvious step-change in the development of the law – the extension of protection to trespassers by the 1984 Act – might be argued to be a radical extension of the 1957 provisions but is in fact little more than an acknowledgement and regularisation of the situation created by the innovation of the common law in Herrington. While the 1957 Act makes express provision for the recognition of special characteristics such as age or the possession of a skill incident to a trade or calling, two factors should be noted: first, the common law was capable of taking such characteristics into account well before the Act; second, notwithstanding the requirements of the Act, courts have proved willing to continue to hold a defendant liable (where the defence is special skill) or absolve him of responsibility (where it is alleged that age should give rise to liability) where the individual circumstances of the case and the operation of common law principles appear to justify such a conclusion.

Bibliography

Deakin, S. et al, Markesinis and Deakin’s Tort Law, (5^th Ed., 2003)

Dugdale, A., Clerk & Lindsell on Torts, (18^th Ed., 2001)

Kidner, R., Casebook on Torts, (8^th Ed., 2004)

Law Commission, Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability, (1976) (Cmnd 6429)

Lexis/Nexis

Westlaw

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Footnotes

^[1] Deakin, S. et al, Markesinis and Deakin’s Tort Law, (5^th Ed., 2003), p.329

^[2] (1866) LP 1 CP 274 at p.288

^[3] per Deane J in Australian Safeway Stores v Zaluzna 162 CLR 479

^[4] [1952] AC 737

^[5] [1929] AC 358

^[6] [1964] AC 1054

^[7] 443 P 2d 561 (1968)

^[8] [1972] AC 877

^[9] Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability (Cmnd 6429)

^[10] Deakin et al., Op. Cit., p.350

^[11] The Times, 12 Mar 1990

^[12] [1922] 1 AC 44

^[13] [1913] 1 KB 398 at 415

^[14] [1966] 198 EG 895

^[15] [2002] EWHC 490

^[16] [1955] 1 QB 450

^[17] (1983) 81 LGR 461

^[18] [1963] 1 WLR 1117

^[19] [1953] AC 180

^[20] [1983] 1 WLR 1264