Changes Brought by Occupiers Liability Act to the Common Law - Essay Example

Changes Brought by Occupiers Liability Act (1984) to the Common Law Introduction Occupiers Liability law refers to the liabilities that are owed to the visitors and trespassers of a premise or related property (Elliott and Francis 169). This law imposes a duty of care on the owner of a property to the person who goes to the premise. This law is established to make sure that the state or activities carried out in a premise does not cause harm to those who visit the premise (Fairchild v Glenhoven Funeral Services [2002]). Occupiers' liability falls in the in the category of tort law, codified in statute. It establishes the duty of care those occupying irrespective of whether they are real owners or just occupying it through a lease. It basically concerns the liability arising from accidents and other forms of personal injury caused by either defective or dangerous conditions that may exist in the premise. The Occupiers Liability Act serves to add more safeguards to uncertainties that characterized the common law position relating to occupiers liability owed to the non-visitors. Evolution of Occupiers liability Law: from Common Law to Statutes The common law of negligence initially applied in cases relating to those who suffered damages while in one’s premise. However, this was to the extent that the claimant proved that a duty of care was owed to him or her under the common law of negligence. However the common law of negligence had inconsistencies owing to differences in court rulings under similar set of facts. It also proved less relaxed in holding the owners of premises liable, often for lack of duty of care, more so to visitors and trespassers. These formed the foundation of a legislative intervention The Occupiers liability Acts (1957 and 1984) being enacted. As of now, the law concerning such liability in the United Kingdoms is mostly found in the Occupiers Liability Act 1957 (regarding visitors) while that regarding the non visitors is largely found Occupiers Liability Act 1984. In as much as the law to a large extent codified common law, the cases have to be relied upon in determining the meaning of “occupier” and the line between a “visitor” and a “trespasser” or a non visitor. According to the Occupiers Liability Act 1957 the occupier only owes a duty of care to the lawful visitors. This duty is similarly owed to the lawfully visitors either to or to on the premise. It is worth noting that the occupiers rather than the owners of the premise retain the liability to compensate the victims injured on the premises as a result of their dangerous state. Sufficient or effective degree of control is used to determine the occupation of the premise. For that reason, one must not necessarily need to be the actual owner of a premise for him or her to be considered the occupier. He may owe the duty if he exercises a substantial extent of control in which case he owes this duty to all lawful visitors with the only exceptions specified in the agreement. The Occupiers’ Liability Act 1984 does not imposes this duty of care on the occupier towards the visitors of the premises; rather it is towards the non visitors, essentially understood as a trespasser. A trespasser for that matter is anybody who goes into the land in another person’s possession intentionally without obtaining a lawful authorization. Taking an example of a theatre, any member of the public who happens to be admitted there is a visitor and the occupier of the theatre owes them a duty of care. The theatre ticket they are issued with serves a license which bears with it an agreement not to be revoked till the end of the performance. As such this is a sufficient authorization (Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA). The extent of liability was traditionally based on whether or not one was a visitor. The question asked then is, who is a visitor? Generally speaking, at common law it was important to know the difference between licensees, invitees and the premise trespassers (Edwards’s v Railway Executive [1952] AC 737). The estimated distinction between licensees and invitee was asked to enter into the premise in occupier’s interest; the license on the other hand was permitted merely to enter. But with enactment of 1957 Act, this seemed not to be important again because the ‘visitor: for the requirement by occupiers’-liability-act (1957) supports the individuals who are licensees or invitees at the common law (sec 1 (2) of the occupiers’-liability-act of 1957) . This primarily includes any person that the occupier gives permission or invitation to use or enter the premise. For the purposes of having a better understanding of this scenario of tort-jurisprudence, it is vital to bring up a distinction between individuals who are termed as visitors and those not, because the former, that is those taken to be the visitors, are under the occupiers’-liability-act of 1957 and the individuals regarded as not being visitors are under the occupiers’-liability-act of 1984. The two acts/legislations were passed to cater for the common law. It can be noted, nevertheless, that common law oblige the occupier more duty to care for invitees than licencees (Wheat v Lacon (1966) A.C. 552). The occupier-liability-act of 1984 decides whether there is a duty owed by an individual as premise occupier to persons who are not his visitors, in reference to any probability of obtaining any injury by the premise due to any kind of damage caused by the premise state or to activities conducted or left out to be undertaken on them. If that is the case explains the duty. The Occupiers’ Liability Act 1984 and the Common Law Section 1 of the Occupiers Liability Act 1984 provides that the statute is meant to replace the provisions (rules) of the common law with regards to personal injury sustained by “persons other than visitors”. However, the Act only protects claims relating to injury occasioned to the trespasser’s person, and not property damage as it specifically refers to “personal injury.” It therefore rules out any claim that maybe founded on property damage. The Act however is silent on the meaning of visitors neither does it define “persons other than visitors.” Since the 1957Act regulates personal to visitors, it implies that the 1984 statute applies to those who are expressly and impliedly covered by 1957 Act. Obviously, non-visitors would include trespassers as well as ramblers, going by the provisions of the s 1(4) of the 1957 Act.. One would still fall back to the common law for the definition of trespassers as the1984 Act, which though covers them do not define them. A trespasser was defined by Lord Dunedin in the case of Robert Addie & Sons (Colliery) Ltd v. Dumbreck [1929] AC 358 in the following words: "A trespasser is a person who goes upon land without invitation of any sort and whose presence is unknown to the proprietor or, if known, is practically objected to." Section 1 subsection 4 of the Act provides that: “Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned” (Occupiers Liability Act 1984, 1 [4]). This section therefore incorporates the common law duty of care and imposes it on the owner of the premise towards the trespassers and ramblers. In particular, this duty would be interpreted to be applicable subject to three conditions under section 1 subsection 3 of the 1987 Act, that basically fall within the test of reasonableness. These conditions are: (1) that the occupier knew or in the alternative ought to have known that the danger existed in his premises, and (2) that the occupier knew or ought to have known that the non-visitor (trespasser or rambler) was in the danger’s vicinity or was likely to come into the danger, and finally (3) the risk in question is one in which considering all the circumstances is one against which the occupier would be expected to offer some protection. In essence, the scope of this Act as provided by Section 1 subsection 4 and the Act generally implies that the duty is not only owed to the innocent and justifiable trespassers ,but even to those who trespass into the premise with the intention of committing crimes, including buglers and thieves, their illicit and disastrous activities not withstanding. Prior to enacting the Occupiers Liability Act of 1984, the occupier’s duty to trespassers was governed by the common law doctrine of “common humanity”, which in commonly described as duty of common sense and accuracy. Under this standard, the standard of duty would not be determined in advance, rather it called upon the court to take into account all the circumstances surrounding a case such as: the type of the trespasser, the seriousness of the risk, resources of the occupier and any other factor that he court would deem fit to consider. A major challenge under the common law position was how to balance the land owner’s owner’s property right to exclude any trespasser from his property and the right of the trespassers and other unlawful visitors, who may happen to have unintentionally trespassed into occupier’s land thereby sustaining injury. The question was whether or not such unlawful visitor ought to be granted damages or not. In Addie v Dunbreck (1929) AC 358, the House Of Lords held that the trespassers were to be regarded to be entering a premise art their own risk and thus were only owed a duty not to be intentionally or recklessly harmed. This principle was to be re-applied in B.R.B v Herrington. In this case, a six years old child trespasser was injured on the defendants’ land, by an electrified rail that had been constructed by the defendants. In the past, the defendants had seen the child cross the line which then was already in dilapidated form. Never the less, he took no step to repair the electric fence. In the suit, an issue arose as to whether he would be liable to the trespasser. The court held that the defendants had breached their duty of care to the trespassers and were therefore liable for the damages resulting. The court pointed out that “An occupier who knows or ought to know there are dangers on the premises owes trespassers a duty 'to take such steps as common sense or common humanity would dictate.” ( B.R.B v Herrington (1972) AC 877) . The 1984 Act also incorporates the “common humanity” doctrine, as espoused in the case of British Railways Board v Herrington. Section 1 Subsection (6c) explains that an occupier may not be absolved from liability with respect to dangers and risks with respect to those things done by the occupier if the occupier does so: “(a) with the intention of creating that risk, or (b) being reckless as to whether that risk is created” (Occupiers Liability Act 1984, S1 [6] {C}). Whereas the common law position left much discretion to the court in deciding whether or not a duty was owed , the Occupiers Liability Act of1984 made the position more certain and precise that a trespasser, even if a criminal will be owed duty of care. The common law doctrine of volenti non fit injuria has been captured by section 1 subsection 6 of the Act which provides as that “ No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)” ” (Occupiers Liability Act 1984, 1 [6]). However it can be noted that under the 1984 Act, the volenti doctrine operates to bar a duty from arising. As such, one it is proved that the claimant willingly accepted the risk that is eventually occasioned to his or her person, then the claimant may not be put on defense as there will be no course of action, and even if put on defense, upon proving the voluntary assumption of risks by the claimant, the case will be dismiss for want of prosecution. The act therefore changes the common law application of volenti non fit injuria where the doctrine operates as a defense rather than to bar an action from arising. This distinction and changes with regards to application of the common law doctrine of volenti becomes very relevant when it comes to awarding and claiming damages in a suit involving occupier’s liability. Where volenti operates as a defense and the defense is successful, the defendant (occupier) may nevertheless be held liable for certain costs incurred by the plaintiff with regards to the suit (to enforce occupier’s liability), such as cost of the suit(Bermingham and Carol 46). On the contrary, if the case is dismissed because there is no duty owed to the claimant, and the claimant will not have a ground claim for the cost of the suit. Instead, it is the defendant (occupier) who may ask the court to award him costs at the expense of the claimant (trespasser). The 1984 Act therefore improves justice to the occupiers by shielding them more strongly from potential liabilities that arise from actions of trespassers. By extension, it creates an opportunity whereby the occupier has a potential round for claiming damages arising from frivolous and vexatious suits against him by ruling out availability course of action. Conclusion The Occupiers Liability Act 1984 modifies some common law provisions relating to the duties of an occupier towards non visitors (trespassers). It makes this duty to be certain, unlike in common law where circumstances of the case had to be scrutinized before determining whether a trespasser was owed a duty of care. The common law doctrine of volenti is another conspicuous feature of the Act, but this doctrine operates as a bar to liability rather than a defense. Never the less, the Act leaves out a numbered of concepts including defining the occupier, visitor, reasonableness and so on, implying that one will still refer to the common law for definition and clarification. Besides, circumstances of a case still remain relevant to establishing liability. Works Cited Addie v Dunbreck (1929) AC 358 Bermingham, Vera and Carol ,Brennan. Tort Law. Oxford University Press, (2008). British Railways Board v Herrington (1972) AC 877) Edwards’s v Railway Executive [1952] AC 737 Elliott, Catherine and Francis, Quinn. Tort Law (6th ed.). Pearson Longman, (2007). Fairchild v Glenhoven Funeral Services [2002] Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA Robert Addie & Sons (Colliery) Ltd v. Dumbreck [1929] AC 358 Wheat v Lacon (1966) A.C. 552 Occupiers Liability Act 1984 Occupation Liability Act 1957 Read More