Occupiers’ Liability Act, 1984
Section 1 (1) (a) of the Occupiers’ Liability Act, 1984 imposes a duty on the occupier towards persons “other than his visitors “. The term ‘trespasser’ was defined in detail in the case of Robert Addie & Sons (Collieries) Ltd v. Dumbreck as: “someone who goes on the land without the invitation of any sort and whose presence is either unknown to the proprietor or if known, is practically objected to.” This act protects trespassers and others who exceed the permission to enter the premises without any invitation or permission from any possible danger. Even if the trespasser enters the premises with a criminal intent he is protected by the provisions of this act. Originally this act applied to child trespassers according to common law provisions when the occupier was conscious of the danger and familiar with the possibility that trespassers, including children, would be subject to danger. The term ‘occupier’ is defined in the same way in Occupiers’ Liability Act, 1984 as it was defined in Occupiers’ Liability Act, 1957. The difference arises in the level of protection offered. As the person entering the premises is a trespasser there is a lower level of protection provided to him. The trespasser is protected only in the case of personal injury and the occupier owes no duty of care towards the trespasser’s property. In contrast to the provisions of the Occupiers’ Liability Act, 1957, under Section 1 (5) of the Occupiers’ Liability Act, 1984, the occupier owes a duty to warn the visitor or discourage him from taking a risk and to keep him reasonably safe from any danger.
OCCUPIER’S DUTY OF CARE
Section 1 (3) of the Occupiers’ Liability Act gives three conditions that must be fulfilled to make the occupier liable to hold a duty of care towards a person other than a lawful visitor:
- The occupier is aware of the existence of danger or has a reasonable ground that it exists
- The occupier knows or has reasonable grounds to believe the other is in the proximity of the danger or may come into such proximity of the danger
- The risk is one in which in all the circumstances of the case, the occupier may reasonably be expected to offer the trespasser some protection
OBLIGATION TOWARDS TRESPASSERS
A trespasser is defined as the “one who goes upon land without the invitation of any sort and whose presence is either unknown to the proprietor, or, if known, is particularly objected to.” The occupier doesn’t owe a duty to safeguard his land from any trespassers, nor to assess his land to locate any danger which he is not aware of since the trespasser is believed to trespass at his own risk. The occupier doesn’t owe the same duty of care towards a trespasser as he does towards a visitor but is responsible to at least take some precautions out of common sense and humanity to warn or try to take reasonable steps to stave off or reduce any danger. Although a trespasser has no right to active protection, the occupier still owes a duty not to cause any willful injury to the trespasser. He is not permitted to engage in any kind of dangerous activity while disregarding the presence of an occupier on the premises. Though if the occupier has no reasonable expectation or has no knowledge of a trespasser being on his land, then he owes no duty of care towards such a person. If he plans to engage in any dangerous activity, he must give out a warning regarding the same.
If an occupier permits frequent acts of trespass he is deemed to have tacitly licensed the entry of others on the land. Such visitors become entitled to the rights of licensees on the land. In Lowrey v. Walker, for thirty-five years the public used the defendant’s field as a short cut to reach the railway station. The occupier of the field i.e. the defendant objected to this act but never really took any measures to stop the trespass. One day, the defendant left a savage horse on his field without putting up any warning sign. When the plaintiff crossed the field he was badly injured by the horse and thus he demanded damages from the defendant. The court held that the defendant would be liable to pay damages as the plaintiff had become a licensee in the eyes of law and had the occupier’s implicit permission to cross the land.
Statutory Duties on Occupiers
The provisions of the Safety, Health, and Welfare at Work Act, 1989 make it an occupiers’ duty to directly or indirectly, make lands and premises safer for entrants. Although the term “work” is undefined, the phrase “place of work” is defined in Section 2 (1) of the Act as including “any place, land or other location, at, in, upon or near which, work is carried on whether occasionally or otherwise”. Section 6 of the Act, is a “General Duties” section which makes it an offense for an employer not to ensure, as far as is reasonably practicable, the safety, health, and welfare at work of employees. The duty extends, inter alia, to the design, the provision, and the maintenance of the place of work, in a condition that is safe and of safe means of access to and exit from such place. Section 9 of the Act provides for a corresponding duty on employees to take reasonable care for their own safety.
Hotel Proprietors Act, 1963
An interesting statutory provision should also be noted at this stage. According to Section 4 of the Hotel Proprietors Act, 1963, “where a person is received as a guest at a hotel, whether or not under a special contract, the proprietor of the hotel is under a duty to take reasonable care of the person or the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them”. From this, it would seem that a guest’s statutory right against a hotel proprietor is wider than the traditional definition in Indermaur v. Dames of the invitee’s right against his invitor. For, as it is phrased in the statute, it would seem that the hotel proprietor is also liable for the acts of his independent contractors. That this section is intended to extend the hotel proprietor’s liability, rather than to consolidate his common law position, seems to be affirmed by sub-section (2) of section 4, which declares that the ” duty is independent of any liability of the proprietor as occupier of the premises.” Section 7 of the Act (which imposes a financial limit on the proprietor’s liability) applies only to damage to the guest’s property and does not apply to an action under Section 4 for personal injuries. The hotel proprietor is prohibited from contracting out of his liability under section 4 by Section 8 of the Act. Such an action, however, is of course confined to hotel “guests” and does not extend to other lawful visitors, whether they be invitees or licensees.
Author: Mani Gupta,
1st year BBA LLB(Hons.) Student of NMIMS Kirit P. Mehta School of Law, Mumbai