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 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 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? The Occupiers' Liability Acts, 1957 and 1984

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

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