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Published online by Cambridge University Press: 16 January 2009
The Occupiers' Liability Bill had its second reading in the Commons on March 6, 1957. It is identical with the Bill that was given its second reading in the Lords on June 21, 1956, and, on a number of points, departs substantially from the recommendations of the Law Reform Committee of October, 1954. It is now thought that the Act will be in force (in one form or another) on January 1, 1958. It continues to cast its shadow before it and shadows are notoriously bogy-like. The Report was castigated for encouraging the exhibition of notice boards excluding liability: the Bill has been abused for permitting it. A desire to anticipate the less controversial provisions of the Bill has recently led to some judicial glossing of the differences between the occupancy and activity duties of an occupier. It is time, perhaps, for a brief recapitulation of some aspects of the Bill, in the light of recent decisions.
1 The Third Report of the Law Reform Committee (Occupiers' Liability to Invitees, Licensees and Trespassers): Cmd. 9305. Considered in C.L.J. (April, 1955), p. 1.
2 (1956) 19 M.L.R. 532, 536.
3 Mr. Kenneth Diplock q.c. (now Mr. Justice Diplock) dissenting.
4 Clause 1 (1).
5 In Professor Newark's classification: (1954) 17 M.L.R. 102, 108–109; Winfield, 668.
6 Clause 1 (2).
7 Dunster v. Abbott [1954] 1 W.L.R. 58; Slater v. Clay Cross Co. [1956] 3 W.L.R. 232; Riden v. Billings [1956] 3 W.L.R. 704.
8 Clause 2 (1) (2).
9 Clause 2 (2) (3) (4).
10 [1951] A.C. 737.
11 [1953] 2 All E.R. 1185 (H.L.).
12 [1941] 2 K.B. 343.
13 [1945] 1 K.B. 174.
14 Clause 2 (4) (b).
15 Cmd. 9305, paras. 70–72.
16 Clause 2 (4) (a).
17 Clause 2 (4) (b).
18 Clause 2 (1).
19 Cmd. 9305, para. 78 (iii): “The common duty of care should be capable of extension, restriction, modification or exclusion by any representation or condition expressly or impliedly made or notified to the person entering in connection with the occupier's invitation or permission.”
20 Clause 5.
21 For a vigorous denial of such a distinction, and a vehement attack on the decision of Havers, J. in Ashdown v. Samuel Williams [1956]Google Scholar 3 W.L.R. 128 (since affirmed by the Court of Appeal [1956] 3 W.L.R. 1104), see Professor L. C. B. Gower in (1956) 19 M.L.R. 532.
22 Joint Torts and Contributory Negligence, p. 312.
23 [1947] 1 All E.R. 258, C.A.
24 (1956) 19 M.L.R. 532, 536.
25 A somewhat similar argument was, it is true, rejected by du Parcq, L.J. in Cosgrove v. Horsfall (1946)Google Scholar 62 T.L.R. 140; but in that case the action was against the driver of a bus, not against his employers with whom agreement to exclude liability had been made.
26 [1956] 3 W.L.R. 1104.
27 [1956] 3 W.L.R. 128; (1956) C.L.J. 153.
28 [1956] 3 W.L.R. 1104, 1112.
29 Ibid., 1117. It may be remembered that Jenkins L.J. was the Chairman of the Law Reform Committee which produced the Report on Occupiers' Liability (Cmd. 9305) and that Parker L.J. was a member of it.
30 [1946] 1 All E.R. 653.
31 [1956] 3 W.L.R. 1104, 1116.
32 Parker L.J., ibid., 1118.
33 DrWilliams, Glanville in Joint Torts and Contributory Negligence, p. 314.Google Scholar
34 Law Reform (Contributory Negligence) Act, 1945; Slater v. Clay Cross Co. [1956] 3 W.L.R. 232.
35 For a vivid picture of the “endless and horrifying” possibilities of notices, see Professor Gower, (1956) 19 M.L.R. 532, 533.
36 Clause 2 (6).
37 (1956) 19 M.L.R. 537.
38 (1956) 72 L.Q.R. 471.
39 Public policy has sometimes required such a provision. For instance, the Road Traffic Act, 1930, s. 97 provides:
“Any contract for the conveyance of a passenger in a public service vehicle shall, so far as it purports to negative or to restrict the liability of any person in respect of any claim which may be made against that person in respect of the death of, or bodily injury to, the passenger while being carried in, entering or alighting from the vehicle…be void.”
And the Law Reform (Personal Injuries) Act, 1948, s. 1 (3) provides:
“Any provision contained in a contract of service or apprenticeship, or in an agreement collateral thereto (including a contract or agreement entered into before the commencement of this Act), shall be void in so far as it would have the effect of excluding or limiting any liability of the employer in respect of personal injuries caused to the person employed or apprenticed by the negligence of persons in common employment with him.”
(Has this, perhaps, been overlooked by Professor Gower in (1956) 19 M.L.R. at p. 533?)
40 Carriers Act, 1830, ss. 4, 6. See Blackburn, J. in Peek v. North Staffordshire Ry. Co. (1862–1863)Google Scholar 10 H.L.Cas. 473 at pp. 496–497, and Lord Chelmsford at pp. 580–582.
41 [1956] 3 W.L.R. 1104, per Jenkins L.J. at p. 1112, quoting with approval Salmond, on Torts, 11th ed. (1953), p. 573.Google Scholar The classic statement of this rule is by Cockburn, C.J. in Gallagher v. Humphrey (1862) 6 L.T. 684Google Scholar:
“The grantee must use the permission as the thing exists. It is a different question, however, when negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permission to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way.”
In the case the plaintiff had both his legs broken by a sack of sugar negligently dropped on him by the occupier's servants working a crane on his wharf. And see Winfield, 701.
42 [1956] 3 W.L.R. 1104, 1120.
43 Ibid., p. 1111.
44 Above, p. 40.
45 [1956] 3 W.L.R. 232, 235.
46 Ibid., 235; cf. Bowie v. Shenkin, 1934 S.C. 459.
47 [1954] 1 W.L.R. 58.
48 [1955] 1 W.L.R. 207.
49 [1943] A.C. 448.
50 [1956] 3 W.L.R. 704.
51 (1848) 12 Q.B.D. 439.
52 (1858) 4 C.B.(n.s.) 556.
53 [1918] 1 K.B. 439; a case notable for Scrutton L.J.'s remark: “it was said there was no authority for this position, but, as Lord Macnaghten said, the plainer a proposition is the harder it often is to find judicial authority for it.”
54 [1941] 2 K.B. 343.
55 (1934) 51 T.L.R. 21.
56 Malone v. Laskey [1907] 2 K.B. 141, in so far as it conflicts, is, in Denning L.J.'s view, founded on a fallacy and inconsistent with Haseldine v. Daw which should prevail; and Ball v. L. C. C. [1949] 2 K.B. 159 cannot be considered as of any higher authority than Malone v. Laskey itself.
57 [1956] 3 W.L.R. 704, 709. And see Davis v. St. Mary's Demolition Co. [1954] 1 W.L.R. 592; Creed v. McGeoch & Sons [1955] 1 W.L.R. 1005; Perry v. Thomas Wrigley [1955] 1 W.L.R. 1164.
58 (1946) 62 T.L.R. 140.
59 [1955] 1 Q.B. 158.