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Occupier's Liability In Law Of Tort

Tort liability can take on various different forms depending on the circumstances surrounding the incident. In general, tort liability is associated with monetary awards, but some forms of liability can lead to other remedies (such as a restraining order or an injunction). The duty of a person in possession of land and building to take reasonable care about their safe condition arises in two cases.

First, it may arise towards a person outside the premises, for example, a person using a highway or an occupier of adjoining property.

Secondly, the duty of the occupier may arise towards the person entering the premise. While his duty to his neighbor or a person on a highway arises from the improper use of his property, his duty towards the person entering it arises from the conduct in inviting or permitting the latter to enter it.[1]

The first, namely duty of owner or occupier of the adjoining property substantially forms a part and has been considered under nuisance. In some of these cases, negligence is a necessary element for liability.

Court of England had nearly a century ago, evolved certain rules defining this duty towards these categories of person:

  • Invitees
  • Licensees
  • Trespassers

The rules, however, presented several difficulties in their application to a new type of cases and often lead to unjust results. In these respect, the rules of common law has been replaced in England by statutory provisions. The occupier’s Liability Act 1957, provides for a common duty of care towards visitors. Another statue Occupier’s Liability Act 1943 has provided for protection against personal injury of persons other than occupier’s visitors.

Some of the aspects of the common law have, however, been beyond controversy and continue to be the part of the law. One of them is the meaning of the phrase Occupier of the premise. He is the person in possession and control of the property. In case of MS Grewal v. Deep Chand School[2], it was approved that while the parent owes his child a duty care in relation to the child a duty of care in relation to the relation to the child’s physical security, a teacher in school is expected to show such care towards a child under his charge as would be exercised by a reasonable, careful parent.

What Is Occupier’s Liability?

Occupier’s liability is concerned with the duty of occupier’s to take care of ensuring the safety of persons within the premises. The Occupier’s Liability Act 1957 and Occupier’s Liability Act 1984 are the two acts which currently govern liability in this field.

In both Acts, an occupier owes a duty of care in respect to dangers due to the state of the premises, or to things done, or omitted to be done on them. – section 1(1) OLA 1957 and section 1(1) (a) OLA 1984.

The common duty of care, that of reasonableness applies, [section 2(2) OLA 1957, and section 1(4) OLA 1984]. Nonetheless, the duty of care in OLA 1984 only exists when circumstances in section 1 (3) are met. The common duty of care under section 2(2) OLA 1957 is a duty to take such care as in all circumstances of the case is reasonable to see that a 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’. Therefore, in determining a breach of duty, regard would be given to the degree of care and the required standard of care as employed in negligent claims.

In Ward v The Ritz Hotel, the the balustrade was lower than permitted by the BSI standards when D fell over it. In turn, the CA held that not complying with BSI standards showed evidence that the occupier had not reached the required standard of care.

Occupier’s Liability Act, 1957

The 1957 act, abolishes the common law categories and provides that all lawful entrants are owed the same 'common duty of care'. This duty is owed by the occupier to his visitors 'in respect of dangers due to the state of the premises or to things done or omitted to be done on them according to section 1(1)(a). Before analyzing the central concepts of occupier, visitor and 'common duty of care', a number of points should be made about the scope of the Act.[3]
  • First, the provisions enacted apply to regulate the obligations of a person occupying or having control over, 'any fixed or moveable structure, including any vessel, vehicle or aircraft' (section 1(3) (a). Thus, while immoveable, landed property is clearly within the Act, so too are moveable’s such as ships and aircraft. Other less permanent structures such as diving boards, scaffolding and ladders and (in Australia) even a car has also been held to be premised.
  • Second, the obligations of an occupier extend beyond a duty not to cause personal injury to a visitor and cover damage to property suffered on the premises whether the property be that of the visitor or of a person who is not himself a visitor (section 1(3)(b).
  • Third, liability under the Act may also arise with respect to omissions. Case example, owners of a public park, who knew that golf balls were regularly hit there but did nothing to stop it, were held liable to a visitor to the park injured by a golf ball struck by a third party.

Who Is An Occupier?

The Act[4] does not attempt a definition of 'occupier', but instead, in section 1(2), provides that an occupier is a person who would have been treated as such at common law. The leading case on the definition of an occupier is Wheat v. Lacon ltd[5]. In that case, the defendants were owners of a public house, the management of which they entrusted to a manager. By virtue of the service agreement, the manager was entitled to live in a flat above the public house and to take in paying guests. There was no direct access between the pub and the flat, both parts having separate entrances. Wand his wife was paying guests of the manager.

W was fatally injured when he fell down an unlit and defective staircase in the flat. W's wife sued the defendants and the main issue was who was in occupation of the flat. The House of Lords held that, in determining who the occupier was, the important question was who had a sufficient degree of control over the premises such that he ought to be under a duty of care to those who come lawfully into the premises. Applying this test the court said that the defendants were to be treated as occupiers for the purposes of the Act.

The principle change made by the Act is to impose on an occupier of premises the same duty, described as the common duty of care towards all his lawful visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise[6]. The persons by whom and to whom the common duty of care is owned are the same as the persons who would at common law be treated as an occupier and as his invitees or licensees.[7]

Important Changes made by the Occupier’s Liability Act:

  1. The The first, important change made by the new law is that the occupier owes the same duty to all his visitors that is, persons who are lawfully on the premises whether by his invitation or permission. The act, therefore, does away with the difference between the two categories of persons, invitees, and licensees and his duties towards them[8]. Whereas under the old law there were three categories of persons, invitees, licensees and trespassers and a graduated scale of duties towards them under the new law there are only two categories, visitors and trespassers.
  2. The second important change is that the duty to visitors is formulated in terms very different from those of rules of the common law. It is described as ‘the common duty of care’[9]and defined as ‘the duty to take such care as in all the circumstances of the case is reasonable to see that the visitors are reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier’s to be there.’
  3. The act proceeds to state some principles for guidance in considering the circumstances which may affect the degree of care required of the occupier. The first principle- circumstances would include the degree of care and of want of care which would be ordinarily looked for in the visitor. The second principle- the act deals with the effect of warning given by the occupier to the visitor about a particular danger. The third principle- the act deals with the responsibility of the occupier for a danger created by the fault of an independent contractor employed by him. It is enacted that he will not be answerable to the harm caused to the visitor if the occupier has acted reasonably.

Visitors
Who is the lawful visitor?
  • Visitor by invitation or given permission to enter the premises.
  • The permission can be either implied or expressed. This permission is usually limited (e.g. to some repairing jobs,…) by restricting the permission the occupier can restrict the duty of care owed to the visitor.
  • The occupier can change the permission to visit anytime; however, it needs to be shown very obviously to the visitor.

In the case Snook v Mannion[10]–

The motorist has told the policeman who has followed him on his driveway in order to examine the amount of alcohol in his body to back off… -

Held: the words which were said to refer to the policeman’s presence on the premises were not sufficient enough to negate the license of permission to enter the driveway Fifi notices like keep out or private property may not be sufficient as well to negate the invitation into the property.

As already stated the common duty of care under the act is owned to visitors which expression now comprehends both invitees and licensees. When there is express permission or invitation by the occupier the case presents no difficulty in holding that the entrant is a visitor. But visitors also include persons entering with implied permission and it is here that difficulty arises on deciding whether the entrant is a visitor with implied permission or a trespasser. The question, however, is essentially one of fact to be decided objectively by assessing the inference arising from all relevant circumstances.

But in deciding such a question some general principles have to be kept in view:

  1. The the burden of proof is on the entrant to show that he had implied permission.[11]
  2. A a person entering to communicate with the occupier is presumed to have implied permission unless there is a notice forbidding him to enter.[12]
  3. Tolerance of repeated trespass of itself confers no license.[13] But court sometimes, especially in case of children, gave a finding in favor of the existence of an implied license.
The term visitor will also include persons who enter premises for any purpose in the exercise of a right conferred by law for the act.

Common Duty of Occupier To Visitors

Under section 2(2) of the Act the duty of care owed to a visitor is ‘a duty to take such care in all the circumstances of the case as is reasonable to see that the the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’.

The occupier needs to take into account the characteristics of the visitor in question. For example, they must be prepared for children to be less careful than adults and conversely there is a lesser expectation when the visitor is a skilled worker.

An occupier will not be liable for accidents caused by work conducted by independent contractors, provided that he has acted reasonably in using the contractor in question and has taken the proper reasonable steps to check competency and that the work was properly done.

Where a visitor goes beyond the extent of the permission granted by the occupier, they are seen to be a trespasser.

What amounted to ‘such care as in all the circumstances of the case is reasonable depended not only on the likelihood that someone might be injured and the seriousness of the injury which might occur but also on the social value of the activity which gave rise to the risk and the cost of preventive measures.

Under the case Tomlinson v. Cangleton Borough Council[14] the defendant Borough council-owned occupied and managed a public park in which there was also a lake. The lake had sandy beaches and was a popular recreational venue where matching sub-aqua diving and other activities were permitted but swimming was not.

Notices reading Dangerous Water:

NO swimming was posted. The claimant dived striking his head on the sandy bottom. It was held that the defendants were not liable. Those people who took no notice of warnings could not create a duty to take other steps to protect them.

Occupier’s Liability Act, 1984
An Act to amend the law of England and Wales as to the liability of persons as occupiers of premises for the injury suffered by persons other than their visitors; and to amend the Unfair Contract Terms Act 1977, as it applies to England and Wales, in relation to persons obtaining access to premises for recreational or educational purposes[15].

Trespassers

A a trespasser is a person who enters the premises of another without his/her consent. However, if the occupier did not object the entry of others on the land then it is assumed that he had consented for the same. Such visitors can get the right of the licensee.

Case- Lowrey v. Walker[16]

Facts: The defendant was the owner of the land which was used by the public as a shortcut from and to the railway station. The defendant objected to this practice but had never taken effective action against the same. The plaintiff, while crossing the field was injured by the horse which was owned by the defendant. The defendant contended that the plaintiff here, was a trespasser and therefore he had no duty against him.

Held: It was held by the court that since the the defendant had failed to take effective action against the trespassers for such a long time, therefore the presence of the consent of the defendant can be assumed in such circumstances. It was observed that the plaintiff was a licensee in this case and therefore, the defendant was held liable for the injury.

Duty of Care Towards Trespassers

Contrary to possible expectation, occupiers still have a duty of care towards trespassers which are set out in the Occupiers Liability Act 1984.
The duty is at a less onerous level. It only comes into play if the occupier:
  1. is aware of the danger or has reasonable grounds to believe that it exists;
  2. he knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into the vicinity thereof; and
  3. The risk is one against which, in all circumstances, he may reasonably be expected to offer some protection to the trespasser.

The duty of care itself is to take such care that is reasonable in all the circumstances of the case to see that the trespasser does not suffer an injury on the premises by reason of the danger concerned. This may be duly discharged by taking such steps as are reasonable to give warning of the danger concerned or to discourage persons from incurring the risk.

The the occupier is not supposed to make his premises safe for the trespassers. However, he cannot deliberately do an act to injure the trespasser. The occupier has the right to take reasonable steps to prevent trespassers from entering the premises but he cannot do anything to harm them. For Example, if the trespasser is injured by falling from the staircase then the occupier will not be liable, but on the other hand, if the trespasser is injured because of the spring guns on the wall of which the owner has not given any notice, then the owner will be liable.[17]
The the occupier of the premises owes a duty of ordinary care.

Case- Mourton v. Poulter [18]

facts: The defendant was cutting an elm tree near which the children were known to be present. The defendant did not warn the children, thus injuring a child standing nearby. When the action was brought against the defendant, he contended that the child was a trespasser on the premises.

Held: It was held that the defendant was liable because he had failed to give adequate warning to the child.

Occupier’s Duty Towards Children

Children do not form a special class. They are treated as visitors or trespassers as the case may be. But the age and intelligence of an errant is a relevant factor and the court is to take this into consideration in deciding cases of a child visitor or trespasser.[19]

The Delhi high court held trespassing children to be an exception to the general rule of owner owing no duty of care to trespassers.

In the case of Nitin Walia v. Union of India,[20] A child visitor of Delhi Zoo aged 3 years put his hands inside the iron bars where a tigress was kept and his hands were crushed by the tigress. It was held that the zoo authorities should have put iron mesh on the rods, which they did after the incident, to prevent a child from putting his hand inside the rods and were liable for damages and the child was not guilty of any contributory negligence.

Contemporary Issues

The statement of the legal rules of occupiers' liability is easy; their application to particular fact situations can be incredibly difficult. However, my purpose at the moment is not to examine the complexity of the problem, but rather to try to give an indication of the general approach of the common law to it. The approach to occupiers' liability is inconsistent with the modern tort tendency to establish negligence duties of care by reference to reasonable foresight of harm.

The occupiers' liability categories evolved in the early and mid-19th century, well before the first judicial attempt 1 to generalize the duty issue in negligence. The categories were created at a time when the economic and social importance of land justified its preferential treatment by the law. The limited obligation of an occupier to those coming on his land affords.

To put it bluntly land and its unfettered use were considered more important in certain respects than human life. Modern tort law involves a balancing process: an attempt by the courts to strike a balance between the claims of defendants to freedom of action and the claims of plaintiffs to security. The categories inhibit this process. But dissatisfaction with the occupiers' liability categories did not result in their abolition.

The common law reforms by way of evolution, not revolution. Instead of abolishing the categories the courts worked within and without them to achieve results consistent with modern views of the proper balance between occupiers' claims to be free to use their land as they see fit and visitors' claims that their interests in their physical person and property be secure.

One view of the distinction between different classes of lawful entrants is that the different duties owned to different kinds of entrants corresponds to real differences in the nature of the user of property and in the reasonable claims to the protection of those who are permitted such use. A contrary view is that the occupier’s duties cannot conveniently be put into straitjackets to fit the character in which the plaintiff comes on to the premises, and that the the confusion caused by attempting to categorize entrants and define the differing duties owed to them would not have arisen if it had been earlier and more generally recognized that the topic is only one branch of the law of negligence.

Duty of Occupier In India With Landmark Cases

One who takes or more usually holds possession. In the legal sense, an occupier is a person in actual occupation, Industrial Supplies (P) Ltd. v. Union of India.[21]

In India, the concept of an occupier", in the context of labor laws is of significant importance and over the years has been the subject of much judicial scrutiny and legislative attention. The reason is that an occupier of a factory assumes statutory liability for non-compliance by the factory establishment under most labor-related statutes in India.

Before 1987, the liberal provisions in the Act allowed a designation of any employee managing the affairs of the factory as an occupier of the factory. In 1987, however, the Bhopal gas tragedy and similar industrial disasters that led to public consensus for the demand of higher responsibility, an occupier was redefined, deeming compulsorily that any one of the directors of a company running a factory would be the occupier of such factory.

Another Landmark Case was JK Industries Ltd and others v. Chief Inspector of Factories and Boilers and others (Supreme Court, 1996) - In this case, the Supreme Court noted that where a company owns or runs a factory, it is the company that has ultimate control over the affairs of the factory and would, therefore, be the occupier.

In Cherubin’s Case[22], the Supreme Court said that:
the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to the trespassers or in reckless disregard of the presence of trespassers

Occupier’s Liability Act In India And England

The law of torts as administered in India in modern times is the English Law as found suitable to the Indian conditions and as modified by the acts of the Indian Legislature.[23]
In India we can follow without any legislation the English Law of Torts as modified by the statue law of England if the statue law is more in consonance with equity, justice, and good conscience.

The expression was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. There is no difficulty in holding that principle of English Act modifying the common law will be followed by the Indian courts.

Likewise, principles laid down in Herrington’s case was considered in Kumari Alka v. Union of India[24]. It was ruled that duty to a trespasser would arise when the likelihood of the trespassers being exposed to the danger was such that by the standards of common sense, occupier would say to be liable. This principle was considered in India because the criterion of duty laid towards trespassers as laid down in this decision is quite equitable and just and not likely to give rise to any difficulty in application.

Case Terry v. Ashton[25] was also relied on by S.C in Municipal Corporation v. Subhagwanti.[26]

Suggestions
I identified several arguments in favor of making negligence the sole test for all entrants. A universally applicable negligence criterion would be capable of delivering justice without the obstacle of technical rules that are capable of throwing up anomalies; least complicated, because the test is a straightforward one capable of application regardless of the factual complexities; and most honest, because it does not need to resort to legal fictions such as that of implied license.

We also pointed out that the proposal that the negligence criterion should embrace trespassers, as well as other entrants, is not identical with the proposition that every occupier should owe every trespasser a duty of care. On the contrary, by no means, all trespassers would be likely to be held in a sufficiently proximate relationship with the occupier, to warrant the imposition of a duty of care on the occupier.

Conclusion
To conclude, the nature of the obligation of an occupier varies with the kinds of visitors. If a person is a lawful visitor then the occupier has to take reasonable care towards the safety of the visitor and their property. Before the passing of Occupiers’ Liability Act 1957, lawful visitors were categorized into Invitee and Licensee, depending on the purpose of the visitor. However, now this distinction between an Invitee and Licensee has been done away with.

It was also concluded that India follows the principles laid down in the cases of occupier’s liability if they follow the principle of equity, justice, and good conscience.

Bibliography
  1. Akshay Sapre, Ratanlal, and Dhirajlal, The Law of Torts (27th ed. 2016)
  2. B.M Gandhi, Law of torts (4th ed.)
  3. Douglas Payne, The Occupiers' Liability Act, Vol. 21, No. 4, JSTOR
  4. Liability for Dangerous Premises, Anjali Dhingra, https://blog.ipleaders.in/liability-for-dangerous-premises/
  5. Alastair Mullis, Ken Oliphant, Occupiers’ Liability, Part of the Macmillan Professional Masters book series (PARMA), https://link.springer.com/chapter/10.1007/978-1-349-14648-2_13
  6. Winfield and Jolowicz, Tort (19th ed.)
  7. Ramaswamy Iyer, The law of torts, (10th ed)

End-Notes:
  1. Cameron v. young [1908] AC 179
  2. (2001) 8 SCC 151
  3. https://www.jstor.org/stable/1090702?read-now=1&seq=3#page_scan_tab_contents
  4. See Occupier’s Liability Act
  5. [1966] 1 All ER 582
  6. Section 2(1) of Occupier’s Liability Act
  7. Section 1(2) of Occupier’s Liability Act
  8. The old cases will also be relevant in determining the boundaries of invitation or license.
  9. Section 2(2) of Occupier’s Liability Act
  10. (1982) RTR 321
  11. Edwards v. Railway Executive (1952) AC 737 : (1952) 2 AII ER 630
  12. Robson v. Hallett, (1967) 2 QB 393 : (1967) 2 AII ER 407
  13. Supra 12
  14. (2003) 3 AII 1127 (HL)
  15. See Occupier’s Liability Act, 1984
  16. [1911] AC 10
  17. https://blog.ipleaders.in/liability-for-dangerous-premises/
  18. [1930] 2 KB 183
  19. See Ratanlal and Dhirajlal, The law of Torts, 516, 27th ed. (2016)
  20. AIR 2001 Del 140
  21. (1980) 4 SCC 341
  22. Cherubin v. State of Bihar, AIR 1964 SC 205
  23. The Indian law of torts based on English law is continued by Article 372 of the constitution which has been interpreted to continue also the common law principles applied in India.
  24. AIR 1993 Del 267
  25. (1876) 1 QBD 314,320
  26. It was held that there was a special obligation on the owner of adjoining premises for the safety of structures.

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