Categories of persons and the occupier’s liability towards them:
Having defined an occupier with some degree of clarity, it would be logical to proceed to the people who might be injured on an occupier’s premises, and who the occupier would therefore be liable to, as well as under what circumstances this liability would be triggered.
Visitors:
The first category of persons who could be injured on occupier’s premises would be a visitor. In order to qualify as a visitor under law, the person in question must have been invited or permitted to enter those premises by the occupier or by someone who had the “ostensible authority” to issue such an invitation or permission on the behalf of the occupier.
Occupiers are liable for injury or damage sustained by vistors to their premises in that they are owed a “common duty of care” under section 2 of the Occupier’s Liability Act 1957. This section states that an occupier will normally owe a visitor a duty to “take such care as is reasonable in all the circumstances of the case to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there”. There has been some debate over whether this “common duty of care” is owed in that the occupier should take reasonable steps to prove that the visitor is not injured solely by reason of the state of the premises or whether the things done on the premises should be an additional factor. While section 1(1) of the act seems to support the latter view in providing that the 1957 Act will “regulate the duty which an occupier of premises owes 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”. However, this phrase was re-interpreted by the Court of Appeal in Fairchild v Glenhaven Funeral Services Ltd, which ruled that the former interpretation was correct.
There are, however, some circumstances in which the concept of “the common duty of care” is not applied, two in particular – 1) Exclusion of duty: Under section 2(1) of the Act, an occupier is free to “restrict, modify or exclude this duty to a visitor by agreement or otherwise”. 2) Assumption of risk: If the visitor willingly agrees to take the risk of being harmed in a particular way when entering premises occupied by the defendant, a duty if care will not be owed – the principle of volenti fit injiuria.
Trespassers:
It should be noted that in the definition of occupiers and occupier’s liability above, particular mention is made of “people coming lawfully there”, indicating that people who have entered unlawfully might not have the recourse of suing for damages in case of injury. The case of trespassers will thus be considered. The occupier may owe a trespasser a duty of care under the Occupier’s Liability Act 1984, which requires the occupier to take reasonable steps to ensure that the trespasser is not killed or injured “due to the state of premises or t things done or omitted to be done on them”, provided that the occupier knows or ought reasonably to know of the existence of danger, and that the occupier knows or ought to know that a trespasser might come in contact with the danger and that the occupier could reasonably be expected to protect the trespasser from the danger.
It is clear that this Act is designed only to include cases where the trespasser was hurt or killed because of a particular dangerous feature of the premises. If the injury or death resulted not because of a dangerous feature, the case will fall outside the scope of the act, as in the case of Revill v Newbury where Revill was injured as he was tying to break into Newbury’s shed, and Newbury shot blindly in an attempt to scare him. The Court of Appeal ruled that Revill did not have a case under the 1984 Act.
Neighbours:
An occupier of premises is expected to take reasonable steps to eliminate the threat of danger posed by a dangerous situation arising on his land that could potentially endanger his neighbour’s land, as in the case of Goldman v Hargrave lightnight struck on the defendant’s land set fire to it, and the defendant did not do enough to prevent the fire from spreading to his claimant neighbour’s land. The claimant was successful in his claim and recovered damages for compensation.
There is, however, some debate as to whether an occupier owes his neighbour a duty of care to prevent his land from becoming a source of danger to the neighbour’s land. This question was raised in Smith v Littlewoods, where vandals broke into the defendant’s abandoned land and a fire was started, spreading to the claimant’s land. The House of Lords dismissed the case, stating that the fire was not a reasonably foreseeable consequence of the defendants having abandoned their land.
Lord Denning in Wheat v E Lacon & Co. Ltd [1996] AC 552, 577
Ferguson v Welsh [1987] 1 WLR 1553,1563, per Lord Goff