PLACEMENT OCCUPIERS’ LIABILITY ACT IN DIFFERENT COUNTRIES
Occupiers’ Liability refers to the duty owned by occupiers of land or premises. The occupier is liable for any injury caused or damage suffered by a person or his property who visits the premises. As stated by British Columbia: “An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises. (This) duty of care applies in relation to the condition of the premises, activities on the premises, or conduct of third parties on the premises.”
The liability for such damages is now a statutory law and is governed by two acts. Namely, Occupiers’ Liability Act, 1957 and Occupiers’ Liability Act, 1984. These acts have replaced a more complicated Common Law. The Occupiers’ Liability Act 1957 governs liability to lawful visitors and the 1984 Act governs the duty owed to those entrants loosely referred to as ‘trespassers’. If the occupier is aware or has reasonable grounds to know of a danger on the premises and that a person may be in the vicinity of the danger and the risk is one against which he may reasonably be expected to offer some protection.
The duty, if any, is confined to taking such care as is reasonable in all the circumstances to see that the danger due to the state of the premises does not cause death or personal injury to the person concerned. The duty may be discharged by taking such steps as are reasonable to give warning of the danger or to discourage persons from incurring the risk. But there is no duty to warn of obvious risks as stated in Tomlinson v. Congleton Borough Council.
THE UNITED STATES OF AMERICA
In USA, the Occupiers’ Liability is simply termed as Premises Liability. The claims of contractual entrants, invitees, licensees and trespassers were disposed of on some legal principles. The traditional system had defined landowner duties based on the status of the entrant; assigning higher duties to those there by consent and lower duties to those who trespassed. Until the case of Rowland v. Christian the state followed a system of liability deeply connected to the Common Law. After California’s decision to change the laws in 1968, the Rowland Standard was introduced.
Rowland standard, however, essentially removed this special protection for landowners from the normal rules of negligence and imposed a standard of reasonable care, only considering the status of the entrant as one of many factors in making the determination. Rowland had a major impact at a scholarly level, but it would be wrong to regard it as representing the center of gravity of the contemporary law of the United States. True, a relatively small number of States followed its lead in completely abandoning categorical distinctions for all entrants, and some others have abolished the distinction between invitees and licensees, leaving the old rules as to trespassers unchanged; but there is still continuing vitality in the old approach.
Indeed, it may well be that the enthusiasm for the Rowland approach was a passing fad. As was noted in a recent Oklahoma decision: “in contrast, a number of courts which have more recently considered the issue have expressed continued adherence to the common law principles of duty based on status as a proper balance between the rights of a landowner and those of the general public”.
A major point of difference between the English Law and the Premises Liability law in The United States is the development of recreational use statues which was formulated to encourage occupiers of land to give their land without worrying about legal liability for any accidents that may occur on his property. Permission to enter for recreational purposes: An owner of any estate or any other interest in real property, whether possessory or non-possessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.
A “recreational purpose” refers to activities such as fishing, hiking, hunting, riding, camping, playing water sports, sightseeing and all other types of vehicular riding, winter sports, recreational gardening, and winter sports and gazing at scenic beauty, archaeological, artistic, natural, historical or scientific sites.
The Occupiers’ Liability (Scotland) Act, 1960 differs from the English Act in a few provisions. Section 2(1) of the Occupiers’ Liability (Scotland) Act, 1960 provides that: “The care which an occupier of premises is required by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger”. Scotland adopted a much more radical approach than the English law and included trespassers under the same provisions as other visitors.
Most jurisdictions have hauled in the common law and significantly modified it by enacting occupier liability statutes such as, in England, the Occupiers Liability Act of 1957 and of 1984.
In Canada, the British Columbia legislation states that: “An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.” This duty of care applies in relation to the condition of the premises, activities on the premises, or conduct of third parties on the premises.
Like the English and Scottish Acts, the Canadian Occupiers’ Liability Act state that the occupier owes a duty to entrants on the premises to take such care as in all the circumstances of the case is reasonable to see that the entrant will be reasonably safe whilst on the premises. In every case, the language of the Acts refers expressly to the duty of the occupier, and there is no suggestion that they are somehow limited to dealing only with standard of care. Rather than following the English and Scottish example of saying that the person on whom the duty is imposed is the same as at common law, most Acts provide a full definition, but in Manitoba and Nova Scotia the common law still has a role to play.
An important illustration of the comprehensiveness of the Canadian Occupiers’ Liability Act is that they generally provide that they apply not only to the condition of the premises and to activities on the premises, but also to the conduct of third parties on the premises — giving them a wider scope than either of the United Kingdom equivalents. In the face of such provisions, there is no question of any limitation to occupancy duty, even though there might have been some suggestion of this at common law.
Author: Mani Gupta,
1st year BBA LLB(Hons.) Student of NMIMS Kirit P. Mehta School of Law, Mumbai