Law in a Business Context - Essay Example

This was then followed by the Occupier's Liability Acts 1984, which set out the duty owed by occupiers towards those who enter their land without permission or unlicensed trespassers (Elliott & Quinn 2003, p.157). However, neither or the Acts provided a deification for the tern ‘occupier’, other than that it would be given the same meaning as under common law. An occupier under common law is a person who has some degree of control to exercise a sufficient degree of control to allow or prevent other people from entering, though they dun have to be a physical occupier not the owner of the premises.

The Occupiers Liability Act imposes a “duty to take such care as in all the circumstances of the case is reasonable” upon the occupier of a property. With both Occupiers Liability Act’s in place, the Occupiers Law under the Law of Tort covered injuries suffered by entrants while on the private land of the occupier. The introduction of the 1995 Act that came into effect on 17th July 1995 radically altered the liability of the occupier in a way that more obligations were placed on the side of the occupier to ensure the safety of land users.

“In the 20 years prior to this enactment, the common law was characterised by the courts’ benevolent attitude to persons who entered land without permission and subsequently suffered injury” (Burke & Corbett 2003, p. 95) In the Supreme Court case McNamara v. Electricity Supply Board (1975), an infant suffered serious injuries from trespassing onto one of the defendant’s sub-stations. The defendants were found liable for not showing the infant a duty to take reasonable care for his safety even though there was a benevolent attitude before this case towards trespassers.

The decision of this case was the basis of the creation of the Occupiers Liability Act 1995. Initially, under the traditional common law system, entrants upon a premises were divided into four categories; that being contractual entrants, invitees, licensees and trespassers. Under the Occupier’s Liability Act 1995, three new categories were created, that being visitors, recreational users and trespassers. In cases where there is more than one occupier, such as a landlord and a tenant, real estate agent or in the case of shared spaces it is usual for liability to be shared but the liability of each party depends on the circumstances of the loss.

An estate agency is considered the Occupier for the purposes of both the “Occupier’s Liability Act 1957” and “Occupier’s Liability Act 1984.” According to Canadian author Allen Linden, with regards to liability and the term 'occupier', states that "the status of occupier is not dependent on ownership of the premises, but rather is based on control over the premises. A person who has the immediate supervision and control of the premises and the power to admit and exclude the entry of others is without doubt an occupier.

Thus, a tenant in possession is an occupier. However, complete or exclusive control is not necessary. An auctioneer hired to conduct a sale on the vendor's premises may be considered an occupier of those premises. An independent contractor carrying out building or repair work may qualify as an occupier. Moreover, it has become apparent that in many circumstances there may be more than one occupier of premises." Therefore, an estate agent is also deemed to be an occupier because the estate