Operators' Obligations to Visitors Simplified
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By Our Legal Adviser
THE Occupiers' Liability Bill, which is likely to become law in substantially its present form within a short time, is a measure that will affect vehicle operators. It is certainly a piece of legislation that is long overdue in the reforms it introduces, and it follows closely the recommendations of the Law Reform Committee's Third Report (1954).
Much has been written—including in The Commercial Motor—about persons suffering injury on another's premises and whether they are there as " invitees " or " licensees." It is very doubtful if the distinction between the two classes, which have been bedevilled by over-nice legal points, have ever been grasped by the layman. It is hard for him to understand that if he is invited to dinner at a friend's house he is not an "invitee" in law but a licensee, whereas if he calls at his doctor's surgery at a time when the latter is hoping to have a free evening he is not a licensee but an invitee!
The legal distinction between the two is-that the person irhose premises are entered has a "material interest" in an invitee but not such an interest in a licensee, and owes the former a higher duty of care for his safety. Now, 'however, both these categories are to disappear, or rather merge, and there will be no distinction between the two.
"Common Duty of Care"
Instead of the different duties of care owed to them by the occupier, there will be one standard applicable— that of the "common duty of care." This is defined in the Bill as " a duty to 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 purposes for which he is invited or permitted by the occupier to be there."
Note the new test—it is "reasonableness," the same test as is applied in ordinary negligence cases. This certainly is a simplification, but to ascertain whether one is acting reasonably in one's care towards visitors to one's premises, one must not test the matter from the subjective angle. Would a jury—supposedly the microcosm of all reasonableness—think so? That is the true.
objective, test.
For operators, the matter does not stop there, however, because not only premises are involved in this change in the law. Clause 1 of the Bill expressly provides that the common duty of care applies equally to the obligations of a person "occupying or having control over" (these are wide words) "any fixed or Moveable structure including any vessel, vehicle or aircraft."
The next major change in the law effected by the Bill is the result of the very harsh decision of the House of Lords in London Graving Dock v. Horton (1951). Formerly an invitee was entitled to be warned of the existence of any " unusual " dangers on the premises. In Horton's case a workman who was injured because of the faulty state of some scaffolding on which he was working, and about which he had previously complained, was held to be debarred from recovering damages because, as he knew and complained of the danger, it could not ibe said to be unusual to him. Under the Bin, where a warning of the dangerous state of premises is given to someone lawfully therein parentheses, it ma Y be noted that the position of 'trespassers is unchanged—that warning by itself is not enough to absolve the occupier from liability, "unless in all the circumstances it was enough to enable the visitor to be reasonably safe." Again the test is one of reasonableness. All employers should note that their position has changed for the worse.
Another change of great importance arises out of the position of an occupier of premises—not forgetting that " premises " includes "fixed or moveable structures including any vessel, vehicle or aircraft "—who employs an independent contractor to maintain or repair them. The law on this subject has wobbled a good deal from one principle to another within the past 20 years, but at present the position is that one cannot absolve oneself from liability for injury caused to a visitor by a defect or danger in the premises by merely delegating the job of seeing that such dangers do not exist to another person—however expert the latter may be and however specialized the subject.
Thus, it is no answer for an occupier to say that he has his lifts regularly maintained and inspected by competent engineers if a visitor is injured by a defective lift. Even though of necessity he knows nothing of the technical working of them, he cannot—as things now stand—get out of his liability. „ Now that is to be changed by the Bill, provided that it was reasonable to entrust the work to' an independent contractor and the occupier takes such steps as he reasonably ought to satisfy himself of the latter's competence and work.
Employ Experts
Again the accent is on "reasonable." The moral here is: always employ a specialist to do a specialist's job. If—in the example of ihe lift—the occupier employs a "little man round the corner" whose knowledge of lifts is nil, he is asking for trouble. Operators should bear this matter well in mind when maintaining or repairing specialized vehicles or equipment which may be used or entered by third parties.
On the application of the principle of the common duty of care, the Bill further makes it clear that among the circumstances which are relevant in determining whether reasonable care has been exercised by the visitor himself—which is, of course, a most relevant circumstance in itself—is the fact that "an occupier must be prepared for children to be less careful than adults." The Bill emphasizes this position.
Also, however, it provides that an occupier is entitled to expect that a visitor, for example, a workman, will appreciate and guard against any special risks inherent in his own job. This means no more than that one is entitled to expect some self-care in such people.
Otte may also note that the old rule• that where a landlord is under a duty to repair only his tenant can recover for a breach of that duty--other persons, even the tenant's own family, being strangers to the contract and therefore with no rights iind& it—has also been abolished.