CONCLUSIONS ON JUDICIAL BEHAVIOUR FROM A COMPARATIVE STUDY OF OCCUPIERS' LIABILITY
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01400.x |
| Date | 01 January 1975 |
| Published date | 01 January 1975 |
CONCLUSIONS ON JUDICIAL BEHAVIOUR
FROM
A
COMPARATIVE STUDY
OF
OCCUPIERS’ LIABILITY
A
COMPARATIVE
survey of the law relating to the civil liability of
occupiers reveals many interesting facts, not only with regard to
the substantive rules applicable in the narrow sphere of occupiers’
liability, but also and of more fundamental jurisprudential import-
ance, with regard to the basic legal institutions and their inability
to cope with
or
respond to the modern social pressures which
clamour for recognition.
The law relating to occupiers’ liability for injuries to visitors
on
their premises represents one piece of dry land which was not
swamped when Lord Atkin, in
Donoghue
v.
Stevenson,‘
opened the
flood-gates of the modern law of negligence. In theory the problems
of occupiers’ liability and manufacturers’ liability are, in essence,
similar enough to be governed by the same legal principles; and
a
different approach to both problems is hard to justify, in logic
or
in
law. Only historical accident can explain the different attitude that
the common law takes to both problems. This difference in attitude
is undoubtedly due, to a large extent, to the historical fact that
Indermaur
v.
Dames
a
predated
Donoghue
v.
Stevenson
by more
than
60
years. Although it was of narrow application and, in theory,
could have been easily engulfed by the principles of modern
negligence, the principle enunciated in
Indermaur
v.
Dames
had
become too firmly entrenched by 1932, to be swamped by another
judicial cross-current.
As
Lord MacDermott
C.J.
vividly said in
Galagher
v.
N.
McDowell Ltd.
;
“The fact seems to be that the concept
of
negligence as
a
separate cause of action developed too late to avoid certain
anomalies. The flood it begot submerged parts of the older law
but it had to eddy round and leave intact other parts that derived
from the forms of action and the notions
of
an earlier age.”
Essentially, the problem involved in the case of the occupier’s
liability is, like
so
many other legal problems, one of competing
interests: on the one hand, there is the interest of the land occupier
to have untrammelled use and control of his property; on the other
hand, and in opposition to this, there is the interest of society in
ensuring the physical safety of all its members, and when a
member is injured the interest to see that he
is
compensated.
When the rules governing occupiers’ liability were being formu-
lated in England in
1867,
social, economic and industrial conditions
1
[
19321
A.C.
562.
2
(1867)
L.R.
1
C.P.
274.
(1961)
N.I.
26,
at
32.
39
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