At common law, landowners had no liability to other persons who were injured while passing in, through or over their land.
Gradually, the English courts accommodated persons injured as a result of such torts but they developed a complex tripartite structure, assessing different schemes for three types of entrants to land: trespassers, licensees and invitees.
Most jurisdictions have hauled in the commmon law and significantly modified it by enacting occupier liability statutes such as, in England, the Occupiers Liability Act of 1957 and of 1984.
For example, 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."
As Justice Martinson stated in the 2008 case of Wilde v. The Cambie Malone Corporation:
"The duty of care imposed by the (Occupiers Liability Act, 1996 Revised Statutes of British Columbia Chapter 337) is to take reasonable care in the circumstances to make the premises safe. That duty does not change, but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation - thus the proviso: such care as in all circumstances of the case is reasonable."
"The Act does not impose a duty on (the occupier) to take reasonable care to insure that persons using the premises will be absolutely safe. The standard is reasonableness. Occupiers are not insurers.
"The care that must be taken by an occupier differs according to the nature and use of the premises."
Underlying Common Law
In two 1923 cases, the English court nailed down the distinction between an invitee and a licensee.
In Mersey Docks and Harbour Board v. Procter, the British House of Lords specified that:
"The leading distinction between an invitee and a licensee is that, in the case of the former, invitor and invitee have a common interest, while, in the latter, licensor and licensee have none."
In Fairman v Perpetual Investment, the Court held that a person who lodged in a flat or an apartment in an apartment house with her sister, the wife of the tenant of the apartment, was not an invitee of the owner of the building when walking on a stairway which was under the owner's control, but was only a licensee.
In Fairman, the Court added the classic statement of law that:
"... the liability in tort of the owner of premises to those who use them ... varies; being lowest to the trespasser; next to a licensee, and the greatest to a person whose position owing to the deficiencies of the English language is described by lawyers as an invitee, meaning persons invited to the premises by the owner or occupier for purposes of business or of material interest."
For invitees and invitors, the 1866 decision of Indermaur v Dames is the leading common law case:
"And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact."
To this, was developed a unique body of law to determine who was an occupier, in order to capture tenants or others who are using land belonging to another.
Finally, the common law developed rules to decide where this unique brand of liability would apply; extending it to include not just land or buildings but also, inter alia, street cars, ships, trains and elevators (Hillman).
As far as who might be liable, or who was the 'occupier', Canadian author Allen Linden describes the common law on this issue thus:
"The status of occupier is not dependent on ownership of the premises, but rather is based on control over the premises. A person who has the immediate supervision and control of the premises and the power to admit and exclude the entry of others is without doubt an occupier. Thus a tenant in possession is an occupier. However, complete or exclusive control is not necessary. An auctioneer hired to conduct a sale on the vendor's premises may be considered an occupier of those premises. An independent contractor carrying out building or repair work may qualify as an occupier. Moreover, it has become apparent that in many circumstances there may be more than one occupier of premises."
French: responsabilité de l'occupant or des occupants.
- Fairman v. Perpetual Investment Building Society 1923 AC 74 (also 92 LJKB 50).
- Hillman v. MacIntosh 1959 SCR 384 (SCC)
- Indermaur v. Dames (1866 LR) 1 CP 274 or 35 LJCP 184 (England)
- Linden, A., Canadian Tort Law, 6th Edition (Toronto: Butterworth, 1997), pages 637-674.
- Mersey Docks and Harbour Board v. Procter 1923 AC 253 (also 92 LJKB 479)
- Occupiers Liability Act, 1996 RSBC Chapter 337
- Wheat v Lacon 1966 AC 522 (HL)