TORT 2.3B OCCUPIER’S LIABILITY UNDER COMMON LAW
THE COMMON-LAW POSITION.
At common law, entrants (i.e. persons that come into the premises of the occupier) were classified into:
- Independent Contractors: Those who came in pursuance of a contract with the occupier.
- Invitees: a person invited by the occupier for their mutual benefit. For example hotel, supermarket, restaurants, and so on.
- Licensees: A person invited by the occupier though not beneficial to him. He may be a gratuitous licensee or one supported by consideration.
- Trespassers: an entrant without lawful justification. Whose presence is not known to/by the occupier and if known, would be objected to.
Now to determine liability of the occupier, the common law position was that an occupier owes a duty to invitees and licensees and must ensure their safety within his premises. See also Addie V Dumbruck. He does not strictu sensu owe a duty to trespassers but he must however not maliciously inflict injury on them as sufficient notice and warning should be put. e.g. beware of dogs. The combination of this position is referred to as the common duty of care.
In Bird V Holbrook the defendant maliciously set up a spring gun to catch trespassers. A child, while pursuing a chicken trespassed and came in contact with the gun which went off/shot and injured him. The court held the occupier liable for the injury to the child entrant. In British Railway Board v. Herrington the court noted that in addition to taking all reasonable and necessary steps to avert danger, a higher standard of care and warning is owed to child entrants. See also Scott V Associated British Ports.