A personal injury practitioner is often instructed by someone injured in a public location, not on a highway, but on premises that are open to the public. It is well known that the relevant law imposing a duty of care to keep lawful visitors reasonably safe on such premises is the Occupiers’ Liability Act 1957 (with the Occupiers’ Liability Act 1984 increasing the scope to trespassers in certain circumstances).
Whilst the 1957 Act (which came into force on the 1st January 1958) has some additional scope for those who are children and are present in the exercise of their calling, the duty is reasonably fair, clear and reduced to a single concept of visitor.
However, if pleadings were to omit the 1957 Act, then the landscape would be wholly different. Instead of a common duty of care, the occupier would owe different duties of care to different individuals. In essence, the Court would be in a position to consider negligence occurring in the 21st century, contrary to Victorian case law.
Prior to the 1957 Act, there were generally three types of visitor:-
- Invitee
- Licensee
- Trespasser
For ease, I will use the term ‘Claimant’ even though in the cases below, they would be referred to as the ‘Plaintiff’.
Invitee v licensee
Pearson v Lambeth [1950] 2 K.B 366 is a case where a person was deemed to be a licensee. The Claimant used a public toilet provided by Lambeth Borough Council, accessible via steps between two walls. At night, a sliding metal grille was pulled across and locked, but during the day it was pushed back and could not be locked open. While inside, children known to swing on the grille pulled it partly forward. When the claimant returned up the steps, he hit his head on the metal hasp hanging from the grille and was injured.
The trial judge dismissed the claim, finding that the Claimant was a licensee and that the council had no knowledge of the specific danger, so it did not breach its duty of care.
The Court of Appeal allowed the appeal because whilst they found the Claimant to be a licensee, they say that the Council had sufficient knowledge of the risk created by third party interference (i.e., children who regularly tampered with the grille, which made it capable of becoming dangerous).
With regard to finding that the Claimant was a licensee, the Court of Appeal said the following:-
This conclusion, if well founded, would absolve us from considering the other issue, namely, whether the plaintiff was indeed a mere licensee or an invitee. If we are wrong, and the plaintiff was an invitee, he would in this character a fortiori be entitled to recover. But, as the issue has been argued before us at some length, we think that we should set out briefly the grounds of our conclusion that the plaintiff was a licensee only. The general principles on which persons coming on the premises of an occupier with his consent are classified as invitees and licensees, respectively, are easy to formulate, but not always easy to apply. They are somewhat over-simplified in the formula in Salmond’s Law of Tort 10 th ed., at p. 476 justly commended by MacKinnon L.J. : ” The invitor says ‘ I ask you to enter upon my business.’ The licensor says ‘ I permit you to enter on your own business ‘.”
Succinct and vivid as is this formula is, it might suggest that the visitor is an invitee only if the business on which he comes is exclusively that of the occupier. This is, of course, not what is meant. It is more exact to say that an invitee is a person who comes on the occupier’s premises with his consent on business in which the occupier and he have a common interest; e.g., a shopper has an interest to buy and a shopkeeper an interest to sell. It is sometimes said that the interest must be pecuniary or at least ” material.” This certainly does not mean that a visitor who is not required to pay and does not pay is necessarily excluded from the class of invitees : e.g., many shops encourage customers to enter and inspect their wares without any obligation to buy.
The Court of Appeal found that using the public toilet was in keeping with a licensee, but found the Claimant was still entitled to damages because, in these circumstances, the Defendant had actual knowledge of the potential danger because they knew of the probability of children being pulled and moved by children. They didn’t need to know or foresee the precise manner in which the danger would translate into an actual casualty.
An invitee would be owed a higher duty of care to be safe from harm.
In the case of Stowell v The Railway Executive [1949] 2 K. B. 519, the Claimant went to Paddington Station to meet his daughter and help with her luggage. As he walked along Platform 9, he slipped on oil or grease and was hurt. Earlier that day, a fish train had arrived, and fish boxes often leaked water, slime, and oil. Staff were supposed to clean and sand the platform after deliveries. Evidence showed oil was still there, and staff had enough time to see and clean it.
The High Court needed to consider whether the Claimant was an invitee or a licensee. They were able to find that the Claimant was an invitee because the railway promoted people entering the platforms to meet arriving passengers. Assisting passengers with luggage helped both the passengers and the railway, as it sped up clearing the platform. Thus, the Claimant was present on the premises for a purpose that shared a business interest with the Defendant.
The duty of care to an invitee was to protect them from unusual dangers they knew or ought to have known about. The unusual danger was to be judged by the perspective of the particular invitee, and people on busy platforms are entitled to expect the surface to be safe and are not required to watch every step. Therefore, the Defendant was negligent as they knew or ought to have known about the oily patch. The Defendant’s staff failed to remove it or make it safe, and this was the cause of the Claimant’s accident.
The shared business interest point could become problematic. Could a door-to-door salesman walk through a garden to a front door and claim a shared business interest? If so, was that status lost when the householder refused the salesman?
Dunster v Abbott [1954] 1 WLR 58 (CA)
This is a case where the Claimant was an advertising canvasser who visited the Defendant’s house hoping to sell advertising space. The Defendant was not interested and escorted the claimant out along a dark driveway and over a small concrete bridge crossing a ditch.
After estimating that the Claimant had reached the road, the Defendant switched off a garage light, but the Claimant was still on the bridge. Believing he was on the pavement, he turned right, tripped, fell into the ditch, and was injured. Initially, the Claimant was treated as an invitee and awarded damages, though with a reduction for contributory negligence. The Defendant appealed.
The Court of Appeal allowed the appeal and dismissed the Claimant’s cross appeal. It was determined that the Claimant was only a licensee, rather than an invitee, because an invitee must be attending on business in which both parties have a common interest and in this circumstance, the Claimant was attending on his business only, for which the Defendant had no interest in.
This is where Lord Justice Denning made the following observation:-
A canvasser who comes without your consent is a trespasser. Once he has your consent, he is a licensee. Not until you do business with him is he an invitee. Even when you have done business with him it seems rather strange that your duty to him should be different when he comes up to the door than when he goes away. Does he really change his colour in the middle of the conversation? And what is the position when you discuss business with him and it comes to nothing? No confident answer can be given to these questions. Such is the morass into which the law has floundered in trying to distinguish between licensees and invitees.
In the present case the canvasser came to the door, the householder asked him in, the canvasser stated his business; the householder was not interested, and the canvasser left. Upon those facts I am clearly of opinion that the canvasser was not an invitee but only a licensee, because he was there on his own business and not on any matter in which the householder had an interest. We all know that a guest whom the householder invites to dinner is only a licensee, even though the householder has an ulterior business motive in asking him. It would be strange if a householder owed a higher duty to a canvasser who comes unasked than he does to a guest who comes on his express invitation.
Ultimately, being a licensee meant the Defendant had only a duty to warn the Claimant of concealed or unusual dangers of which he was aware. The Licensee must take the premises as they find them in all of circumstances. Even as an invitee, the Court of Appeal found that the Defendant was not negligent, but this case shows the dangerous of having different levels of duty of care depending on the type of visitor you are.
What about trespassers?
In the case of R Addie & Sons (Collieries) Ltd v Dumbreck [1929] ALL ER Rep 1, the Defendants owned a colliery field with dangerous haulage equipment, including a horizontally exposed wheel connected to a cable used for transporting ashes. The poorly fenced field, with large gaps in the hedge, was accessible to children from nearby houses, and despite warnings from employees, children frequently entered it, mistaking the machinery for an attractively dangerous play area.
Tragically, a small child was fatally injured when he wandered into the field, approached the active wheel, and was caught. The child’s father sued the owners, alleging negligence for failing to adequately fence or guard the machinery to prevent such access.The House of Lords allowed an appeal by the Defendants. They found that the child was a trespasser because there was no permission for children to enter the field, and despite knowing about the trespassing, the Defendants had only warned them without encouraging or tolerating their presence.
The House of Lords confirmed that an occupier has no duty to a trespasser unless there is deliberate harm or reckless conduct, and in this case, the defendants were only negligent without malicious intent.The House of Lords rejected the proposition of a higher duty toward child trespassers. Despite the dangerous and attractive machinery, knowing that children often entered the field did not change the legal position. Age was irrelevant once classified as a trespasser. They found that occupiers were not required to fence against the world, and that failing to do so does not turn trespassers into licensees or create liability.
Consideration
The duty of care introduced by the Occupiers’ Liability Act 1957 marked a meaningful change from the old, often inconsistent common law rules. Before the 1957 Act, liability was largely based on the type of visitor you were, with different protections that could lead to confusion, including whether you substantially changed from one type of visitor to another during a visit to the occupiers’ premises.
The 1957 Act eliminated the invitee/licensee distinction and established a single statutory duty for all lawful visitors, making sure occupiers take reasonable steps to keep them safe.
However, the warning is this. If those who draft proceedings fail to include reliance on the 1957 Act and plead the allegation that the Defendant had failed to breach s2 of the 1957 Act, then the Claimant risks the Court having to consider the duty of care owed by the Defendant under the stricter common law duty.
After all, all recent case law is considering the application of the 1957 Act after it had been pleaded and relied on by the Claimant.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
