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OCCUPIERS LIABILITY
LAW OF TORTS

PRAKHAR BHARADWAJ
SEMESTER I
2014080

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM
NOVEMBER 2014

ACKNOWLEDGEMENT
I have taken efforts in this projects . However , it would not have been possible
without the kind support and help of many individuals and organisations .i would like to
extend my sincere thanks to Mrs. Sridevi. for guiding me though this project.
I am highly indebted to DSNLU VIZAG for their guidance and constant supervision as
well as for providing necessary information regarding the project and also for their
support in completion of this project.
I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which helped me in completion of this project.
My thanks and appreciations also go to my colleagues in developing the project and
people who have willingly helped me out with their abilities.

LIST FO ABBREVIATIONS
SCC : Supreme Court Cases

HB : Halsbury
SC : Supreme Court
Co. : Company
AIR : All India Report
All ER : All England Report
UOI : Union of India
UCIL : Union Carbide India Limited

LIST OF LANDMARK CASES RELATED TO OCCUPIERS LIABILITY

1.
2.
3.
4.
5.
6.
7.
8.

Bunker v Brand
Rylands v Fletcher
Slater v Hill Corp.
Jaipur Golden Gas Victims v UOI
Mushtaq Ahmed v State of J&K
Victims of Uphaar v UOI
UCIL v UOI
MC Mehta v UOI

SIGNIFICANCE AND BENEFIT OF THE STUDY

According to the researcher this Project will help to understand, what is basic concept of
occupiers liability, How this concept is Evolved, Under what condition it is used, what
remedies are available, conditions responsible for person to be liable under occupier
liability. Researcher had used simple language and some land mark cases in his research
related to occupier liability by this research researcher wants to give a detailed
description of topic which will make this topic easy to understand and researcher will
also try to make awareness of all the benefits one can get through occupiers liability.

CONTENTS

1- Introduction and Definitions.. 5

2- Obligations towards lawful visitors.... 6-7
3- Duty towards an Invitee. 7-8
4- Duty towards Licensee... 8-9
5- Obligation and Duty toward Trespasser. 9
6- Obligation towards children... 10
7- English Law 10-11
8- PREAMBLE OF OCCUPIERS LIABILITY ACT 1984. 11
9- Types of Liabilities 11
10- Judicial Approach 12-16
11- Defenses.. 17
12- Bibliography. 18

ABSTRACT
Occupiers liability is a concept which delves upon tortuous liability of the owner or
occupier for the premises. It also specifies the liabilities of visitors, trespassers et al. the
English governs it with two legislations viz. The occupiers Liability Act, 1957 & the
Occupiers Liability Act, 1984. On the other hand India has created the novel concept of
absolute liability. Occupiers Liability is bubbling with cases pertaining to it which are to
be explored.
INTRODUCTION

The topic deals with the tortious liability for premises. It was so that the owners had no
liability to other persons who were accidently hurt or injured while they were passing
through, over or in their land. Basically this section of law describes the duties imposed
by the law of tort on occupiers in relation to the maintenance orusage of their premises.
According to it occupiers have a duty to maintain the premises safely for the benefit of
third parties. The occupiers must also note that the usage of the property doesnt create
nuisance for fellow citizens.
DEFINITIONS
OCCUPIER: An occupier is basically a person who is in physical possession , has
responsibility, has control over a premise. The occupier is defined as person in control of
the premises when the mishap took place. (1)
PREMISES: Premises in broad terms not only refer to the buildings or infrastructurebut
can also include a wide variety of things like fixed and moveable structures. In the case
of Bunker v Charles Brand, a large excavating machine was categorized as premises.(2)

1.Waylands Case
2. [1969] 2 QB 480

OBLIGATION TOWARDS LAWFUL VISITORS

Who is VISITOR?
The Occupiers' Liability Act 1957 regulates occupiers' liability to visitors. Sec 1(2) of the
Act defines visitors as persons to whom the occupier gives (or is to be treated as
giving) an invitation or permission to enter or use the premises. In other words, visitors
are persons who have the express or implied permission of the occupier to be on the
premises. A visitor who exceeds the occupier's permission, e.g. by going to the part of the
premises where he was told by the occupier not to go, or by outstaying his leave, will
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become a trespasser and will fall outside the sphere of application of the Act. He will
then be in the sphere of application of the Occupiers' Liability Act 1984, with lower
standards of protection.
"Visitors" for the purposes of the Act are also persons who enter premises for any
purpose in the exercise of a right ... whether they in fact have [the occupier's] permission
or not. Police carrying out a lawful search or fire-fighters in the exercise of their duties
will fall into this category.

Prior to Occupiers liability act 1957 the position was governed by common law rules.
Common Law classified lawful visitors into two categories
1- Invitees: An invitee is a person who is invited to land by the possessor of the
land as a member of the public or one who is invited to the land for the purpose of
business dealings with the possessor of the land.1

2- Licensees: A person who enters land with permission of the owner but without a
purpose of conveying economic benefit on the owner of the land. Typically, a
licensee is a social guest. Under tort law, if an owner of land knows in advance of
a concealed dangerous condition on his land that a licensee is not aware of, he
owes a duty to the licensee in this situation.2

DUTY TOWARDS AN IVITEE

1 http://en.wikipedia.org/wiki/Invitee
2 http://en.wikipedia.org/wiki/Invitee
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Invitees are generally people who come on land for a business purpose to the benefit of
the land possessor or to the mutual benefit of the visitor and land possessor. The
Connecticut Supreme Court described three types of invitees.
1. A public invitee is someone invited to enter or remain on land as a member of the
public for a purpose for which the land is held open to the public.
2. A business invitee is someone invited to enter or remain on land for a purpose directly
or indirectly connected with business dealing with the possessor of land.
3. A social invitee is someone who is owed the same standard of care as a business
invitee. The distinction between an invitee and a licensee depends largely on whether the
visitor received an invitation, as opposed to permission, to enter or remain on the land.
Although an invitation does not establish the status of an invitee, it is essential to it
(Restatement (Second), 2 Torts 332 Comment B, Corcoran v. Jacovino, 161 Conn. 462,
(1971)).
The possessor of land owes an invitee all the duties that he owes to a licensee and also:
(1) The duty to inspect the premises and erect safeguards, if necessary, to render the
premises reasonably safe .
(2) He has liability for defects that would ordinarily be discoverable by a reasonable
inspection and he has the duty to give a proper warning. But he is not liable to anyone for
unknown latent defects, that could not be discovered by the exercise of reasonable care 3
Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or
constructive, of the specific defective condition that caused the injury, and that the
condition existed for a sufficient length of time to allow the possessor, in the exercise of
reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan
v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could
not have been discovered or anticipated.

3 http://www.cga.ct.gov/2002/rpt/2002-R-0365.htm
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DUTY TOWARDS LICENSEE

A licensee is someone privileged to enter or remain on land because the possessor
consents to it, either by invitation or permission (Salaman v. Waterbury, 246 Conn. 298
(1998)). In Connecticut, the following rules apply to a possessor of land with respect to
licensees.
1. He may not intentionally harm the licensee or lay a trap for him.
2. The licensee is entitled to due care after his presence is actually or constructively
known.
3. There is no liability owed to the licensee for the obvious condition of the premises but
conditions that may be obvious in the daytime may become concealed at night.
4. The possessor of land has a duty to watch out for licensees or tolerated intruders if he
is engaged in a dangerous activity.
5. The possessor of land must warn licensees and tolerated intruders of dangerous hidden
hazards he actually knows about
An owner or occupier of land is subject to liability to a licensee for injuries sustained
from a natural or artificial condition if he (1) knows of the condition, (2) realizes it
involves an unreasonable risk, (3) has reason to believe the licensee will not discover the
condition or risk, and (4) permits the licensee to enter or remain on the premises without
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exercising reasonable care to make the condition reasonably safe or warn the licensee of

the condition and the risk (Laube v. Stevenson, 137 Conn. 469 (1951)). Certain statutes
grant immunity, such as when land is made available for recreational use.

OBLIGATIONS TOWARDS TRESPASSERS

4 http://www.cga.ct.gov/2002/rpt/2002-R-0365.htm
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Who is Trespasser?
One who, without permission of the owner or privileges, enters onto anothers property
intentionally Under tort law, such a person is owed no consideration by the landowner for
any ills that may befall him or her.

DUTY OWED TO TRESPASSER

In Connecticut, the following rules apply to a possessor of land with respect to a
trespasser.
1. He may not intentionally harm the trespasser or lay a trap for him.
2. The trespasser is entitled to due care after his presence is actually known.
3. There is no duty owed regarding the condition of the premises.
4. The possessor of land has no duty to trespassers if he is engaged in a dangerous
activity until the person's presence is know.
5. The possessor of land has no duty to warn trespassers of dangerous hidden conditions.5

OBLIGATIONS TOWARDS CHILDREN

The rules change when young children are the trespassers. In the case of a child
wandering onto the property without proper authorization, the property owner still has
5 http://www.cga.ct.gov/2002/rpt/2002-R-0365.htm
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a duty to ensure the property is safe. The reason for this exception is that children are
often times nave to dangers on property and can in fact by lured to investigate a
dangerous condition such as an abandoned well or maybe a big piece of machinery.
Such potential hazards are known as attractive nuisances. As such, a property owner
has the duty to inspect the property to ensure there are no potentially unsafe conditions
that may attract children.
A property owner may be liable for an injury to a trespassing child if they were aware
of, or should have known, young children may likely trespass in the area of a
dangerous condition on the property that involved an unreasonable risk of bodily harm
to children.6

ENGLISH LAW
The English law has codified statutes when it comes to occupiers liability in them. The
most Important ones are The Occupiers Liability Act , 1957 & Occupiers liability Act,
1984.Subject to section 3(4) and sections 4 & 9 and subsection (2) of section , this act
determines the care that an occupier is required to show toward persons entering on the
premises in respect of dangers to them, or to their property on the premises , or to the
property on the premises of persons who have not themselves entered on the premises ,
that are due to state of the premises, or to anything done or omitted to be done on the
premises , & for which the occupier is responsible by law.
In the initial stages the courts tried to mitigate the rigour of the law by applying ordinary
principles of negligence if the injury was caused in the course of operation of some
activity carried by the occupier. (4)

6 http://wiki.legalexaminer.com/help-center/articles/property-owners-liabilitysafety-and-prevention.aspx
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PREAMBLE OF OCCUPIERS LIABILITY ACT 1984

The preamble of the occupiers liability act, 1984 reads as An Act to amend the law of
England and Wales as to the liability of persons as occupiers of premises for injury
suffered by persons other than their visitors; and to amend the Unfair Contract Terms Act
1977, as it applies to England and Wales, in relation to persons obtaining access to
premises for recreational or educational purposes.5

TYPES OF LIABILITIES: OCCUPIERS LIABILTY AT A GLANCE

JUDICIAL APPROACH
The foremost case in Occupiers liability is that of the case of M.C. Mehta v. Union of
India9 originated in the aftermath of oleum gas leak from Shriram Food and Fertilisers
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Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas
leak and created a lot of panic in Delhi. One person died in the incident and few were
hospitalized. The case lays down the principle of absolute liability and the concept of
deep pockets. The Supreme Court made the following observation:
Since we are not deciding the question as to whether Shri ram is an authority
within the meaning of Article 12 so as to be subjected to the discipline of the
fundamental right under Article 21, we do not think it would be justified in setting
up a special machinery for investigation of the claims for compensation made by
those who allege that they have been the victims of oleum gas escape. But we
would direct that Delhi Legal Aid and Advice Board to take up the cases of all
those who claim to have suffered on account of oleum gas and to file actions on
their behalf in the appropriate court for claiming compensation against Shriram.
Such actions claiming compensation may be filed by the Delhi Legal Aid and
Advice Board within two months from today and the Delhi Administration is
directed to provide the necessary funds to the Delhi Legal Aid and Advice Board
for the purpose of filing and prosecuting such actions.

A similar case pertaining to the topic is of the Union Carbide v Union 10 of India
hereinafter called by its popular name of Bhopal Gas Tragedy.The Bhopal Gas Tragedy,
involving a massive release of 40 tonnes heavier-than-air toxic methylisocyanate (MIC)
gas, resulted in the death or injury of many thousands of people in the surrounding
residential areas.
9. M.C. Mehta v. Union of India (Oleum Gas Leak Case) AIR 1987 SC 1086 Para 32

10. 1989 SCC (2) 540

The Union Carbide India Ltd. (UCIL) pesticide plant in Bhopal, which used to
manufacture the pesticide Servin (carbaryl) gained world-wide recognition as a result of
this tragic chemical disaster on the night of 2-3rd December 1984.

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It was in the build up to this case that the principle of absolute liability was actually
applied. The case still remains under consideration for the purview of the honourable
supreme court in some matters.
When we see further we find a case where the government was held liable for leaving out
in attending live wires which were hanging from poles and was prosecuted for it. This
case if of Mushtaq Ahmed v State of J&K Wherein a lady named Rani was passing
through a thoroughfare at village Kartholi adjoining village Maheen Sarkar of Tehsil
Samba, District Jammu, when on coming in contact with the snapped 11 KV aerial line,
she got electrocuted. Mushtaq Ahmed, her husband; Fermin Akhtar, Nasreen Akhtar and
Naseema Begum, her minor daughters have filed this writ petition seeking a command
against the respondent State and its functionaries in the Power Development Department
to pay them Rs. 6,00,000 along with interest at the rate of 18 per cent per annum as
compensation for the death of Rani.
The question that, therefore, falls for consideration is as to whether even in such type of
cases, where death or injury is caused because of leakage of electric energy by the State
engaged in supply of electric energy, which, no doubt, poses a potential threat to the
safety of living beings, if not properly controlled, an aggrieved party would be debarred
from invoking extraordinary civil writ jurisdiction of the court when the electrocution had
taken place because of no fault of the victim.
Any act or omission of the State and its functionaries which takes away the life or
otherwise impairs or injures it, would, in my opinion, amount to violation of such
person's fundamental right to life and liberty flowing from Art. 21 of the Constitution of
India. Engaged in a hazardous and inherently dangerous activity of supplying electric
energy, which if left uncontrolled would take away life or impair and injure it, the State
cannot thus be heard to say that victim aggrieved by the after-effects of such discharge of
electric energy, will be disentitled to invoke the writ jurisdiction of the court to seek
compensation therefore, determination whereof may not require decision on any
complicated and disputed questions of fact.

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The most important case which has formed the crux of liabilities laws since decades is of
Rylands & Fletcher11 wherein a man named Rylands employed contractors to build a
reservoir, playing no active role in its construction. When the contractors discovered a
series of old coal shafts improperly filled with debris, they chose to continue work rather
than properly blocking them up. The result was that on 11 December 1860, shortly after
being filled for the first time, Rylands's reservoir burst and flooded a neighboring mine,
run by Fletcher, causing 937 worth of damage.
Justice Blackburn gave the following comments after observing the facts in this case:We think that the true rule of law is, that the person who for his own purposes brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape. He can excuse himself by shewing that the
escape was owing to the Plaintiffs default; or perhaps, that the escape was the
consequence of vis major, or the act of God; but as nothing of this sort exists here, it is
unnecessary to inquire what excuse would be sufficient. The general rule, as above stated,
seems on principle just. The person whose grass or corn is eaten down by the escaping
cattle of his neighbor, or whose mine is flooded by the water from his neighbour's
reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose
habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali
works, is damnified without any fault of his own; and it seems but reasonable and just
that the neighbour who has brought something on his own property (which was not
naturally there), harmless to others so long as it is confined to his own property, but

11.UKHL 1, (1868) LR 3 HL 330

which he knows will be mischievous if it gets on his neighbour's, should be obliged to

make good the damage which ensues if he does not succeed in confining it to his own
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property. But for his act in bringing it there no mischief could have accrued, and it seems
but just that he should at his peril keep it there, so that no mischief may accrue, or answer
for the natural and anticipated consequence. And upon authority this we think is
established to be the law, whether the things so brought be beasts, or water, or filth, or
stenches
A most recent case in this regard is of Jaipur Golden Gas Victims V Union of India12
The case pertains to the death of 3 people due to the leaking of phosgene gas from the
godown of the respondent. The case had laid down the principles for storage of dangerous
compounds in godowns as short term remedies like :A. Grant of licences for storage of chemicals and other inflammable materials.
(i) Grant of further Adhoc licences for storage of chemicals and other inflammable
materials etc. should not be permitted. Any attempt at establishing new trade units
including godowns etc. in these congested areas should be dealt with firmly. The Adhoc
licencing policy has been, to a large extent, responsible for mushrooming growth of such
units. It should be made abundantly clear that no adhoc licences shall be sanctioned in
future in the contested areas of the walled city.
(ii) For the existing units, any violation of the conditions of licence should be dealt with
severely including sealing of premises which the Chief Fire Officer considers hazardous
or risky form the first point of view. The limit of fine of Rs. 5000/- provided in the DMC
Act should be enhanced substantially.
(iii) Storage of hazardous and dangerous substances without licence should be made a
cognizable offence.
(iv) Assistance of the market/residents association of the katras etc. should be sought in
providing adequate fire safety measures.

12.W.P.(C) 6415/2006

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Uphaar cinema Tragedy13 of New Delhi is one where the fire prevention laws and
buildings law were also used to determine the liability of the occupier. This case is
popular for the consideration of occupiers liability for a premise which didnt have
adequate fire safety measures.
Fifty-seven people died in June 1997 when a fire broke out at an upmarket cinema hall in
the heart of the Indian capital during the screening of a Hindi movie based on a war
between India and arch-rival Pakistan in 1971.
Two people later died in hospital. The fire at the Uphaar Grand cinema was caused by
sparks from transformers housed in the theatres basement and owned by the Delhi
Electricity Board. Most of the victims were asphyxiated as panic-stricken people tried to
reach dimly marked exits to escape the smoke and fire. On Thursday, a two-judge bench
ordered the payment of 1.5 million rupees (31,250 dollars) to the relatives of the victims
who were younger than 20 at the time of tragedy and 1.8 million rupees (37,500 dollars)
each to those older than 20. The court also ordered compensation of 100,000 rupees each
to all those injured in the accident.

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DEFENCES
The following are defenses that can be used in an action for occupiers liability:

Consent of the visitor. If a risk is willingly accepted by the visitor then the
occupier will not be liable for any damage suffered. Signs such as enter at your
own risk are good examples of this.

Contributory Negligence. The individual claiming occupiers liability for an

injury sustained while on the premises may well have contributed himself to the
injury.

Exclusion of Liability. The occupier can exclude their liability by an agreement.

In the case of business however, this is likely to fall foul of the Unfair Contract
Terms Act 1977 in the case of business but not in the case of recreational
premises.

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BIBLIOGRAPHY
STATUTES
1.
2.
3.
4.

The Occupiers Liability Act, 1957

The Occupiers Liabilty Act, 1984
Maharashtra State Fire Prevention Act, 2000
Bhopal gas Leak Claims, 1985

BOOKS
1.RATANLAL & DHIRAJLAL, LAW OF TORTS [ 26TH ED. , Lexis Nexis, Nagpur
(2012)]
2.PSA PILLAI, LAW OF TORTS [9th ED.,Eastern Book Co., Lucknow (2010)]
WEBSITES
1.http://www.westlaw.in
2. http://www.indiankanoon.com

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