THE OCCUPIERS’ LIABILITY ACT

DOIhttp://doi.org/10.1111/j.1468-2230.1958.tb00481.x
AuthorDouglas Payne
Publication Date01 Jul 1958
THE
OCCUPIERS’
LIABILITY ACT
THE Occupiers’ Liability Act,
1957,
which came into force
on
January
1,
1958,
makes important changes in the law governing
liability for injuries suffered
on
dangerous premises. The Act
gives effect to the recommendations of the Law Reform Committee,1
and substitutes for the common law rules which previously regu-
lated
an
occupier’s liability towards his hvitees, licensees and
contractual visitors a set
of
statutory provisions which constitute
a minor code.
In
this
article the effect of the Act
will
be
briefly
examined.
A
Smom
Dm
TO
VI6ITOlL6
The principal 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
80
far
as he
is
free to and does extend, restrict,
modify
or
exclude his duty to
any visitor or visitors by agreement or otherwise.”
The
persons
by whom and to whom the common duty
of
care
is
owed are the
same
as
the persons who would at common law be treated as
an
occupier and
as
his invitees
or
licensees.”4 The duty owed
to
a
person who enters premises
in
exercise of a contractual right with
the occupier,
so
far
as
it
depends
on
a term
to
be implied in the
contract, is also the common duty of care2 The Act therefore
1
Third
Report,
Cmd.
9305.
Noted by Mr.
R.
F.
V.
Heuston
(1955) 18
M.L.R.
271.
a
The new rules apply also
to
a pereon occupying or having control over any
fixed or movable structure, including any vessel, vehicle or aircraft,
to
the
same extent as the previous common law
rules:
RE.
1
(3)
(a),
6
(a).
See
Salmond on
Torts
(12th
ed.), p~,.
475-476.
But the Act does not affect the
obligations imposed on a pereon by or by virtue of any contract for the
hire
of, or for the camage for reward of pereons or
goods
in, any vehicle, vessel,
aircraft or other means of trans
rt,
or by virtue of any contract of bailment
”:
8.
5
(3).
In a contract for tc hire of a vehicle a term will ordinarily
be
implied that the vehicle is
8s
fit and safe for the purpose intended 8s reason-
able care and skill can make it: see
Hymn
v.
Nys
(1881) 6
Q.B.D.
685:
Read
v.
Dean
[1949] 1
K.B.
188.
On the liability of a camer for reward
for the structural safety of the conveyance,
SIX.
the recent case of
O’Connor
V.
British
Transport
Commission
[l958] 1
All
E.R.
558.
Persons who enter premises for
any
purpose in exercise of a right
conferred by law are
to
he treated
8.9
permitted by the occupier
to
be there
for that purpose, whether they in fact have his permission or not:
8.
9
(6).
But
a
person entering any premises in exercise of rights conferred
h
an access
agreement or order under the National Parks and ACC~XS
to
the &untryside
Act,
1949,
is
not
a
visitor of the occupier for the purposes of the Act:
S.
1
(4).
The effect of an access agreement or order seems
to
be that the occupier
owes such a person no higher duty than he would owe
to
a
trespasser: see
National Parks and Access
to
the Countryside Act,
1949,
8.
66
(2).
8
8.
5
(1).
This section does not apply
to
contracts entered into before January
1,
1958.
s
8.
2 (1).
4
6.
1 (2).
859
am
THE
MODERN
LAW
REVIEW
VOL.
21
abolishes the common law distinction between invitees, licensees
and contractual visitors.
It
is
true that this is not done in
so
many
words, but
no
significance is to be attached to this omission.
A legal distinction
is
abolished by depriving
it
of legal consequence,
and this is what the Act has done by providing that the old common
law distinctions shall
no
longer determine the incidence of different
rules of law; though,
as
we shall see, the broad considerations
on
which the common law distinctions were founded may still be
relevant to the question whether the common duty of care has
been discharged in
a
particular case.
The Act makes
no
change in the law governing liability
to
trespassers, and
so,
while
it
will
no
longer
be
necessary to classify
a
lawful
visitor
as
an
invitee, licensee
or
contractual visitor,
it
will
still be necessary to resort to the old law in order
to
determine
whether the plaintif€ would have been
a
licensee, express
or
implied,
or
a
trespasser.6 Indeed, since the effect of the Act
is
to improve
the position of
a
person who was
a
mere licensee under the old
law,
it
may be said that the distinction between licensees and
trespassers is now
of
even greater consequence. What effect this
widening of the gap between the licensee and trespasser
will
have
on
marginal cases is uncertain. Now that
a
more positive duty is
imposed
on
an
occupier to prevent injury to all his lawful visitors,
it
may be,
as
the Law Reform Committee appeared to contemplate,'
that judges and juries will be less astute to infer implied licences
than has sometimes been the case
in
the past.
!bE
COMMON
DUTY
OF
CARE
The
';
common duty of care is defined by section
2 (2)
as
;'
a
duty
to
take such care
as
in
all
the circumstances 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
definition is amplified by
a
number of further
provisions in the same section.
One of these provides that
66
the circumstances relevant for the
present purpose include the degree of care, and of want of care,
which would ordinarily be looked for in such
a
visitor,
so
that (for
example)
in
proper cases-
(a)
an
occupier must be prepared for children to be less care-
ful than adults; and
6
The
old cases will
also
be relevant
in
determining the boundaries of the
invitntion or licence:
Merae
Docka
d
Harbour
Board
v.
Procter
[1923]
A.C.
253;
Pearson
v.
Coleman
&o8.
[1948]
2
K.B.
359.
In
this connection the
old doctrine of
"
nllurem;,nt
"
will sti!! be relevant when the visitor
is
a child,
for the existence of
nn
on
a
part
of
the
premises
to
which
a
child
is
forbidden,? go may pr:yent an occupier from maintaining that the child,
attryted
by
the was
8
trespasser in going on that part of the
premises:
see
Clasgow
Corp.
v.
Taylor
[1922]
1
A.C.
44;
Holdman
v.
Hamlyn
[1943]
K.B.
664,
668;
Cough
V.
N.
C.
B.
[1954]
1
Q.B.
191, 201.
allurement
allurement,
7
Cmd.
9305,
pp.
30-31.
286

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