The Occupiers’ Liability Act, 1957 defines an occupiers’ “common duty of care” towards his lawful visitors. “Common duty of care” is defined in Section 2 (2) of the act as “a duty to take such care in all the circumstances is reasonable 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.
Who is an Occupier?
Since the term is discussed widely in the applicable common law, the Act does not provide a definition for ‘occupier’ but the duty under the Act is laid on an occupier as per Section 1 (2) of the Act. The term was mainly defined by a decision of the House of Lords by Lord Denning’s judgment in the case of Wheat v. E. Lacon & Co: ” It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises. In order to be an ‘occupier’, it is not necessary for a person to have entire control over the premises. He need not have an exclusive occupation. Suffice it that he has some degree of control. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequences of his failure but each may have a claim to contribution from the other.” Basically the ‘occupier’ does not necessarily need to be occupying the premises in order to come under the scope of this act, being legal owners of the property lays on them the duty of care according to the act.
What is the Premises?
Section 1 (3) (a) notes that premises not only refers to land and buildings but it includes vessels, vehicles, and aircraft. Thus it includes specific movable modes where the defendant remains in control of it and the plaintiff suffers injury when he enters it.
Who is a Lawful Visitor?
The lawful visitor is further subdivided into 3 categories:
- a person having express permission to visit the premises: People who are expressly invited into the premises by some means fall under this category. In this case, occupiers have the right to limit the extent of the expressed invitation by limiting the place, time, or their behavior. If someone deviates from the said instructions he/she shall fall under the category of trespassers and thus lose their protection under Occupiers’ Liability Act, 1957
- a person having implied permission to visit the premises: People who lack the express permission by the occupier but his/ her presence is considered unobjectionable by the occupier fall under the category of persons with implied permission to visit the premises. This permission can also be limited, expressly, or by a natural limitation which will apply for many forms of implied permission. Implied permission can come into being if an occupier knows that their land is being used by trespassers, but does nothing to prevent their activities.
- the person having lawful right to visit the premises: People maintaining a right to enter the property or land with no regard to the wishes of the occupier, fall under this category. These people enter the land or property in accordance with a valid contract. Under Section 2 (6) of the Occupiers’ Liability Act, these visitors are termed as “lawful visitors”. The law provides the occupier to provide such lawful visitors a higher standard of care if it is mentioned in their contract.
OCCUPIERS’ DUTY OF CARE
Section 2 (2) of Occupiers’ Liability Act, 1957 defines a relevant duty of care that an occupier must “take such care as in all the circumstances of the case is reasonable 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 is a variation in the nature of an occupier’s obligation according to the kind of persons who frequent his land or property.
OBLIGATION TOWARDS LAWFUL VISITORS
Before Occupiers’ Liability Act was formulated, the Common Law classified lawful visitors into two categories –
- Invitees: A person who comes inside the premises with the occupiers implied or expressed consent is termed as an invitee. This may involve a material benefit for the
- Licensees: A person who is permitted by the occupier to be present on the premises and his visit do not materially benefit the occupier, such a person is termed as a licensee. The licensee in some circumstances may actually derive a clear benefit at the occupier’s
Separate rules were established for occupier’s obligations towards them but after the act was passed in 1957 it abolished the distinction between the two. Both the terms are now comprehended in the term ‘visitors’ in accordance with the changes made in the act. An occupier now owes a single common duty of care towards both invitees and licensees. There is no difficulty when the entrant has express invitation or permission by the occupier, but an issue arises when the entrant claims he has implied permission. It becomes cumbersome to establish if that entrant is a visitor with implied permission or a mere trespasser. Lawful visitors also include persons who enter the premises by acting on their right conferred by law to be present on the premises. The Act provides that such persons have a right to be there even if they don’t have the occupier’s permission. A police officer or court official entering the premises with a court order or a warrant are to be treated as lawful visitors.
OBLIGATION TOWARDS SPECIAL VISITORS
Occupiers’ Liability Act, 1957 provides a duty of care towards the following two types of special visitors:
- Children: Section 2 (3) (a) of the Occupiers’ Liability Act, 1957 provides that an occupier must be prepared for a child to be less careful than an adult and a greater level of care is required to keep them away from any harm. A dangerous object or premises may not be an obvious danger to a child and at times they would be attracted to it and thus an occupier needs to take extra measures to make his premises for children. In the case of Cooke v. Midland Great Western Railway of Ireland, the children used to play with the turntables which were kept on the defendant’s land close to the road with the knowledge of the railway servants. The defendant i.e. the railway company had taken no precautions to stop the children from going near the turntable or lock or fasten it. A four-year-old child was injured while playing with the turntable. It was held by the House of Lords that the children were licensees of the occupier and the turntable was an allurement and thus the defendant should be held liable as they owed a common duty of care to protect the plaintiff from any such harm. Although not all minors are equal – older children are less susceptible to harm than younger children. Thus, the relevant level of care will depend on the nature of the risk and the age and awareness of the child involved. In some conditions, while an adult would be regarded as a trespasser or a licensee but a child may be regarded as an invitee.
- Skilled Visitors: Section 2 (3) (b) of the Occupiers’ Liability Act, 1957 focuses on skilled visitors as visitors on the land. Such skilled visitors are expected by the occupier to have a greater awareness of risks than the others and should already take reasonable precautions while working on the occupier’s premises. Their increased competency although would only apply to risks that are of the same nature as of the visitor. The occupier must still act responsibly and reasonably even if the risk is of nature which may be encountered normally by a skilled visitor. An occupier will still have a duty of care towards skilled visitors if they are harmed by a risk, despite utilizing their skill.
In the case of General Cleaning Contractors Ltd. v. Christmas, the plaintiff, Christmas was under a contract to clean windows of the defendant’s building for twenty years. The plaintiff climbed up the wall and used an open sash window for support while he cleaned the wall. He fell and injured himself when the top half of the window accidentally closed on his fingers and he lost his balance. The plaintiff argued that the risk of the sash windows to slip and fall on his fingers was not predictable and it’s potential to close was not known. He sued against the building’s occupier and demanded damages for the injury. He lost the case as it was held that Christmas was a skilled professional and should have recognized the risk as he had been doing the job for twenty years should have known how to mitigate the risk.
Author: Mani Gupta,
1st year BBA LLB(Hons.) Student of NMIMS Kirit P. Mehta School of Law, Mumbai