Occupiers and lawful visitors
“Occupation” of land is primarily a question of fact rather than a question of law. An “occupier” need not be a landowner or a tenant — he may (for example) be a building contractor in possession of a site or a squatter in possession of a house. One building may, in fact, be “occupied” by more than one party — as in the case of a public house owned by a brewery and managed by a resident licensee: Wheat v E Lacon & Co [6] AC 552. The decisive factor is the degree of control which the defendant is able to exercise over the premises (or part of the premises) in question.
A lawful “visitor” is anyone to whom the occupier has given an express or implied permission (or invitation) to enter the land, or who has lawful authority to enter the land. The concept of a “visitor” therefore includes such casual callers as postmen, milkmen, Jehovah’s Witnesses, canvassers, customers, metermen, and the “meals-on-wheels” delivery lady. But a person may be a lawful visitor in one part of a building but a trespasser in another part. Thus in R v Walkington [9] 2 All ER 716 the Court of Appeal held that a jury was entitled in law to find that the defendant was a trespasser (and, hence, also a burglar) when he went behind a counter in a shop in order to steal from the till. Similarly, a person’s active misuse of the premises may make him a trespasser, even though (if he had behaved himself) he would not have been labelled as such. Thus a son who has a general invitation to visit his father’s house will, nevertheless, be a trespasser if he goes to that house to steal: R v Jones and Smith [1976] 3 All ER 54. (The Court of Appeal adopted the dicta of Scrutton LJ, who once said: “When you invite a person into your house to use the staircase you do not invite him to slide down the bannisters”: The Calgarth [1927]p 93, at p 110).
The duty of care of an “occupier” towards a lawful visitor is defined by section 2(2) of the Occupiers’ Liability Act 1957. It is known as “the common duty of care” and falls far short of the strict duty imposed upon landowners by the law of public nuisance or the tort of Rylands v Fletcher (see above). It is defined as “a duty to take such care as, in all the circumstances of the case, 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 to be there.” Section 2(3) makes it clear that an occupier “must be prepared for children to be less careful than adults” — but that (by the same token) he 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”. Thus, in Roles v Nathan [3] 1 WLR 1117 an occupier of a building was held not to be in breach of the common duty of care when two sweeps suffocated while cleaning the flues of a boiler which had already been reported to them as liable to give off carbon monoxide gas.
Although the “common duty of care” is, for most purposes, coterminous with the duty of care in the law of negligence, an action for negligence against an occupier of land may (in certain circumstances) have advantages over an action for “breach of statutory duty”. First, the plaintiff may foresee that the court may hold him partly to blame for his own misfortune. An action for negligence allows him to retain some part of his damages after an appropriate deduction has been made for his “contributory negligence”. It is not possible to make an apportionment of blame in an action for breach of statutory duty and so, if the plaintiff had the last opportunity to avoid the accident, his own negligence might defeat his claim against the occupier of the land altogether. Second, an action for negligence may allow the plaintiff to take advantage of the doctrine of res ipsa loquitur and transfer the evidential burden of the case to the defendant. Thus, in Ward v Tesco Stores [6] 1 All ER 219, the Court of Appeal held that the fact that the plaintiff (a customer in a supermarket) had slipped on some yoghurt was sufficient evidence of negligence to transfer the evidential burden to the owners of the supermarket. It was then for them to prove (if they could) that they had taken every reasonable precaution to prevent such accidents happening. See also: Mainly for Students, September 6 and 20 1986 — articles on “Circumstantial evidence” and “Prima facie evidence”. Such an evidential advantage cannot arise out of an action for breach of statutory duty unless (as is mentioned below — see: Employers and Employees) the statute itself expressly or impliedly reverses the burden of proof.
Occupiers and trespassers
The term “trespasser” covers a multitude of sinners, from criminals to children. Moreover, in law, a person will be a trespasser even if he does not realise that he is trespassing on land. The “common duty of care” does not apply to trespassers of any description — so that, in some cases, the courts have attempted to spell out an implied invitation to child trespassers in the case of landowners with dangerous allurements on their land.
In British Railways v Herrington [2] AC 877, the House of Lords recognised the existence of a residual common law duty of care towards trespassers on land which (in contra-distinction to the “common duty of care”) it called a duty “of commonsense and common humanity”. In the nature of things, such a duty was only ever likely to be owed to child trespassers entrapped by hidden dangers, or to persons of similar vulnerability. Moreover, the House of Lords emphasised that the financial means of the defendant and his ability (or otherwise) to take precautions against such trespassers was also an element in deciding whether the duty had been breached.
The duty of care to trespassers (such as it is) has now been codified by the Occupiers’ Liability Act 1984. Section 1 deals with two questions: (1) whether a duty towards a trespasser arises at all; and (2) if it does, what that duty is. Section 1(3) states that a duty will arise if the occupier of the land is aware of a danger on his land (or has reasonable grounds to believe that it exists) and he knows (or has reasonable grounds to believe) that another person is in the vicinity of the danger or may come into the vicinity of it.
The danger in question must be one that creates a risk against which, in all the circumstances of the case, the occupier “may reasonably be expected to offer some protection”. (This is an objective question and does not depend upon the occupier’s own perception of the risk — if he knew, or ought reasonably to have known, of the danger and the victim’s approximity to it.) The extent of the duty is defined by section 1(4) as being a duty “to take such care as is reasonable in all the circumstances of the case” to see that the other person does not “suffer injury on the premises by reason of the danger concerned”. Section 1(5) makes it clear that this duty may, “in an appropriate case”, be discharged by taking reasonable steps to give a warning of the danger, or to discourage persons from incurring the risk. No duty is owed to a person who willingly accepts the risk in question, and so the ordinary maxim of volenti non fit injuria (“to a willing person, no legal injury can be done”) applies to trespassers no less than it does to lawful visitors: section 1(6).
Employers and employees
An employer’s duty to his employees is contractual (because of the contract of employment existing between them); tortious (because of their proximity to each other in the law of negligence); and statutory (because of such legislation as the Health and Safety at Work etc Act 1974 and the Factories Act 1961). In Wilsons & Clyde Coal Co v English [8] AC 57 Lord Wright defined the employer’s contractual duty as “the provision of a competent staff of men, adequate material, and a proper system and effective supervision”. In practice, this analysis has been taken to include reference to a “safe place of work”. Since Lord Wright made it clear that none of these duties are absolute duties — but merely duties to use due care and skill — there is no substantial difference between the contractual duty of an employer and his duty in the law of negligence. However, the statutory duties of an employer — although seldom absolute in nature — are often more beneficial to the employee than the above duties because of a rule of statutory interpretation which transfers certain evidential burdens from the employee to the employer. Thus section 28 of the Factories Act 1961 requires the employer “so far as is reasonably practicable” to keep all floors, steps, stairs, passages, and gangways properly maintained and free from any obstruction or substance likely to cause persons to slip. (Other sections in the same Act are substantially to the like effect, with regard to other hazards in a factory.) In Nimmo v Alexander Cowan & Sons [1968] AC 107, the House of Lords held that it was for the employer to prove that it was not “reasonably practicable” for him to have prevented a danger from occurring at work; it was not for the employee to prove that his employer could have taken better “reasonably practicable” precautions.
Contracting out?
It is self-evident that an owner or occupier of land cannot “contract out” of his responsibilities to the public at large. For the same reason (public policy) he cannot contract out of his duties to his employees (when he is an employer) or to tenants and third parties (when he is a landlord with a duty to carry out repairs to defective premises). However, with regard to lawful visitors and trespassers a greater freedom is given. Trespassers may, of course, be warned (by notice) of hidden dangers or deterred by notices or manifest obstructions from proceeding on to land at all. Lawful visitors may agree, by contract, to an exclusion or modification of the “common duty of care” except to the extent that this is forbidden by the Unfair Contracts Terms Act 1977. Sections 1-2 of this Act state that a person cannot “by reference to any contract term or to a notice … exclude or restrict his [business] liability for death or personal injury resulting from negligence” or exclude or restrict business liability for any other loss or damage for negligence “except in so far as the term or the notice satisfies the requirement of reasonableness”. However, this provision has now been amended by section 2 of the Occupiers’ Liability Act 1984, so that an occupier of land who permits an educational or recreational visit to be made to his land will not be treated as a person who has incurred a “business liability” unless the granting of access to the land for such purposes does, in reality, fall within the business purposes of the occupier.
The effect of this amendment is to permit (for example) a farmer to arrange an educational visit to his farm, or a recreational visit to an artificial lake, on condition that the visitors accept the risk of the premises being in a dangerous state. If, however, he arranges such visits as a business activity, he will not be able to enforce any such exemption or warning notice.
