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Published online by Cambridge University Press: 02 January 2018
There is nothing new about legal rules which provide that a person who is in control of land owes a duty of care to entrants thereto. These occupiers’ liability rules are often seen as something primarily to do with tort, but their content and substance are also likely to reveal a good deal about the ‘property policy’ of the legal system in question, in the sense that they will indicate the respective weight and importance attachkd to various kinds of competing claim over land. A legal system containing rules that restrict the circumstances in which those with individual, controlling claims over land owe a duty of care to other persons entering that land would appear to indicate a policy preference for supporting and protecting ‘private property’ claims to land above others. On the other hand, a system which imposes on those controlling land a greater degree of legal responsibility for persons entering thereon may be one based on a policy of recognising, protecting and supporting a range of claims in land beyond those of a narrow, private nature.
1. See J. Waldron The Right to Private Property (Oxford: Clarendon Press, 1988) pp 31, 32,35 and generally ch 2. This paper is based upon the complex, ‘relational’ view of property, rather than the layperson's simplistic view of it as ‘things’ owned in some way ‘absolutely’ by persons: see Waldron, op cit, pp 26–30; B Ackerman Private Property and the Constitution (New Haven: Yale University Press, 1977) pp 26–28; CB Macpherson Property: Mainstream and Critical Positions (Oxford: Basil Blackwe11,1978) pp 3–4 6–11. Note, however, that there may be arguments for retaining the simple ‘thing based’ approach to property in certain circumstances: see S Munzer A Theory of Property (Cambridge: University Press, 1990) pp 17, 74.
2. Waldron, above, n 1, p 38. Although the idea of a layperson's ‘organising idea’ underpinning private property systems may be valid, there seem to be problems with Waldron's contention that this organising idea is ‘ownership’. This is because, by Waldron's own admission, his ‘name-object’ correlation is abstract and rarely instantiated in practice (ibid, p 42), and because, as A M Honoré has pointed out (‘Ownership’ in Making Law Bind (Oxford: University Press, 1987)) ‘ownership’ is a relative, complicated idea, made up of a number of incidents: see W N R Lucy and F R Barker ‘Justifying Property and Justifying Access’ [1993] 6 Canadian Journal of Law and Jurisprudence 287 at 291–293.
3. Ackerman, above, n 1, pp 97–100, 116–118; Waldron, above, n 1, pp 38–39.
4. Waldron, above, n 1, pp 38–39; Munzer, above, n 1, p 25.
5. See further on the distinction between concept and conception, Waldron, above, n 1, pp 52–53.
6. This argument obviously resembles, and is therefore indebted to, arguments already put forward by others: see, eg, Macpherson, above, n 1, chs 1 and 12; K Gray Property in Thin Air’ (1991) 50., ‘The Ambivalence of Property’ in Threats without Enemies (London: Earthscan Publications Ltd, 1993) p 150 at pp 157–161, and ‘Equitable Property’ [1994] 2 Current Legal Problems 157.
7. Although it has been suggested that there may be no conflict at the level of normative justification: see Lucy and Barker, above, n 2.
8. A network estimated at 140,000 miles in total: Countryside Commission Managing Rights of Way: An Agenda for Action (CCP273, 1989) p 7.
9. De facto public access has traditionally been available to large parts of Scotland, but there are relatively few established public rights of way: see Rights of Way: A Guide to the Law in Scotland (Edinburgh: Scottish Rights of Way Society, 1986); M Shoard This Land is our Land (London: Paladin, Grafton Books, 1987) pp 360–369. In Northern Ireland, the opportunities for public access to land, whether along public rights of way or by other means, appear to be severely restricted: see Department of Environment for Northern Ireland/Northern Ireland Tourist Board/Sports Council for Northern Ireland Access to the Northern Ireland Countryside: Summary Report (HMSO, 1994), pp 2–5; compare the impression given in Shoard, above, pp 369–370.
10. See generally W N Hohfeld Fundamental Legal Conceptions as Applied in Judicial Reasoning I (ed W Cook) (New Haven: Yale University Press, 1923) and especially p 38; C Wellman A Theory of Rights (Totowa, New Jersey: Rowman & Allenheld, 1985) pp 8, 13. This paper is concerned with the nature, effect and strength of the claim-rights of access to land which are enforceable by each member of the public against X, a landowner, by virtue of public rights of way across X's land. This should be distinguished from what Hohfeld describes as X's privilege as a landowner of having access to (‘entering on’) his own land: see Hohfeld, above, pp 38–39.
11. This claim-right of ‘exclusive physical control’ is Honoré's first ‘incident of ownership’: see above, note 2, pp 166–168.
12. L Becker Property Rights (Boston: Routledge and Kegan Paul, 1977) pp 11–12. See also below, n 57 and associated text.
13. See Leasehold Reform Act 1967 and Leasehold Reform, Housing & Urban Development Act 1993.
14. See Town & Country Planning Act 1990 (as amended).
15. See, eg, Compulsory Purchase Act 1965 and Planning and Compensation Act 1991, Part III. See also Honoré above, n 2, p 190 who points out that ownership has never been absolute in the sense of exemption from social control.
16. See eg, R Babcock and D Feurer 'Land as a Commodity “Affected with a Public Interest” (1977) 52 Washington Law Review 289; V Yannacone ‘Property and Stewardship’ (1978) 23 South Dakota Law Review 71; Gray ‘Equitable Property’, above, n 6. At a more practical level, the Countryside Commission has also launched a pilot scheme to encourage landowners to manage land for environmental and public benefit: see Countryside Stewardship: An Outline (CCP455, 1994).
17. Examples cited by Gray include local parks and leisure areas, railway stations, airports and, in particular, shopping centres: see ‘Equitable Property’, above, n 6, at pp 172–181.
18. See W N R Lucy and C Mitchell ‘Replacing Private Property: The Case for Stewardship’, paper presented to the 17th IVR World Congress Challenges to Law at the End of the 20th Century, Bologna, June 1995.
19. Arguments for stewardship would also seem to be consistent with the suggestions in this paper for a more effective degree of legal protection for those exercising these inclusive access rights, in that they recognise as legitimate the wider claims of the public to share in the enjoyment of land.
20. See, eg, Munzer, above, n 1, pp 88–90; Gray, ‘Property in Thin Air’, above, n 6 at p 294: ‘….’ property' resides not in consumption of benefits but in control over benefits. ‘Property’ is not about enjoyment of access, but about control over access.'
21. See A Offer Property and Politics 1870-1914: Landownership, Law, Ideology and Urban Development in England (Cambridge: University Press, 1981) pp 338–342; J Ranlett ‘Checking Nature's Desecration: Late-Victorian Environmental Organisation’ (1982–3) 26 Victorian Studies 197; H Malchow ‘Public Gardens and Social Action in Late Victorian London’ (1985–6) 29 Victorian Studies 97.
22. Notably the National Parks and Access to the Countryside Act 1949, Highways Act 1959, Countryside Act 1968, Highways Act 1980, Wildlife and Countryside Act 1981 and Rights of Way Act 1990.
23. See, eg, Recreation 2000: Policies for Enjoying the Countryside (CCP234, 1987); Recreation 2000: Enjoying the Countryside: Priorities for Action (CCP235, 1987); Paths Routes and Trails: Policies and Priorities (CCP266, 1989); Managing Rights of Way: An Agenda for Action, above, n 8; Rights of Way: An Action Guide (CCP375, 1992); and National Target for Rights of Way (CCP436, 1993).
24. See the Rights of Way Act 1990, which makes significant amendments to the duties of occupiers and the powers of local authorities to protect public rights of way over agricultural land. See also Margaret Ewing MP's Freedom to Roam (Access to Countryside) Bill, introduced into the House of Commons on 22 March 1994: 240 HC Hansard (6th series) cols 137–139.
25. See, eg, Rubinstein v Secretary of State for the Environment (1989) 57 P&CR 111; R v Secretary of State for the Environment, ex p Simms and Burrows [1990] 3 All ER 490; Fowler v Secretary of State for the Environment and Devon County Council (1992) 64 P&CR 16; Lasham Parish Council v Hampshire County Council (1993) 91 LGR 209; Margaret Mayhew v Secretary of State for the Environment (1993) 65 P&CR 344.
26. See Shoard, above, n 9, p 322.
27. See, eg, R v Mellor (1830) 1 B & Ad 32 at 37 (109 ER 699 at 701) per Littledale J; Greenwich Board of Works v Maudsley (1870) LR 5 QB 397 at 404 per Blackburn J; Cubitt v Lady Caroline Manre (1873) LR 8 CP 704 at 714–715 per Brett J; A-G v Antrobus [1905] 2 Ch 188 at 201–202. See also S Sauvain Highway Law (London: Sweet and Maxwe11, 1989) pp 24–43; T Bonyhady The Law of the Countryside: The Rights of the Public (Abingdon: Professional Books, 1987) pp 29–39.
28. See, eg, Highways Act ss 24, 25, 26. Ibid, s 31 now provides for a statutory presumption of dedication after a 20-year period of public use: see Sauvain, above, n 27, pp 32–35; Bonyhady, above, n 27, pp 30–37 passim.
29. Shoard, above, n 9, pp 321–322; 343–346; J Riddall and J Trevelyan Rights of Way: A Guide to Law and Practice (Ramblers' Association/Open Spaces Society, 2nd edn, 1992), p 29. See also the comments of Scott LJ in Jones v Bates [1938] 2 All ER 237 at 249.
30. A person is an ‘occupier’ for the purposes of the 1957 Act (and presumably also for the other legislation: see notes 31–33, below) where he is in control of the land or other premises: Wheat v Lucon [1966] AC 552 at 578–581, per Lord Denning MR. Although not every occupier will necessarily have a property interest in the premises (such as an independent contractor: Bunker v Charles Brand [1969] 2 QB 480), it is difficult, given the control test, to envisage a situation in which none of those with private property interests in the land will be occupiers for the purposes of imposing legal liability on them for persons exercising wider, inclusive, public access rights over the land.
31. See Occupiers' Liability Act 1957, s 1; Occupiers' Liability Act 1984, ss 1(1), (2); Occupiers' Liability Act (Northern Ireland) 1957, s 1.
32. See Occupiers' Liability Act (Northern Ireland) 1957; Occupiers' Liability (Northern Ireland) Order 1987 (SI 1987/1280 (N115)).
33. Occupiers' Liability (Scotland) Act 1960, s 1(1); Johnstone v Sweeney [1985] SLT (Sh Ct) 2, esp at 5, per Sheriff D Kelbie.
34. Greenhalgh v British Railways Board [1969] 2 QB 286, followed in Brady v Northern Ireland Housing Executive [1990] NI 200 at 212–213, per Hutton LCJ and McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 at 240–242, per Lord Keith. See also Law Commission Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupier' Liability (Law Com No 75, Cmnd 6428, 1976) para 42; Royal Commission on Civil Liability and Compensation for Personal Injury (The Pearson Commission) (Cmnd 7054; 1978) para 1561.
35. Section 1(7); see also Occupiers' Liability (Northern Ireland) Order 1987, above, n 32, art 3 (9). Users of private rights of way are, it seems, now covered by the English 1984 Act and thus Holden v White [1982] QB 679 would probably be decided differently today. It is also significant, given the shift towards ‘recreational’ public access to land discussed above (see notes 26–29, above, and associated text), that the 1984 Act protects those exercising ‘rights to roam’ over ‘open country’ pursuant to access agreements or orders under Part V of the National Parks and Access to the Countryside Act 1949. For more detail, see F R Barker and N D M Parry ‘Open Access, Rights and Legislation’ (work in progress, publication expected 1996).
36. Highways Act 1980, s 263(1); Whiting v Hillingdon London Borough Council (1970) 68 LGR 437 at 443, per James J (on the Highways Act 1959, s 44); compare Law Commission, above, n 34, para 45.
37. Sections 41(1), 58.
38. Law Commission, above, n 34, paras 46–47 (although contrast the Commission's Working Paper No 52 of the same title (London: HMSO, 1973). para 40). Purely economic losses are not recoverable in this way: Wentworth v Wiltshire County Council [1993] 2 All ER 256.
39. See The Pearson Commission, above, note 34, paras 1560, 1561; Law Reform Advisory Committee for Northern Ireland Discussion Paper No 4: Injuries on Unadopted Public Rights of way (Belfast: HMSO, 1993) ch 4.
40. See, inter alia, Highways Act 1980, ss 56, 137, and the new provisions introduced by the Rights of Way Act 1990 to deal specifically with amenity problems on public rights of way (now ss 131 A, 134, 135, 137A and Sch 12A of the 1980 Act).
41. A suggestion also made by the Law Reform Advisory Committee for Northern Ireland in relation to public rights of way in urban housing developments, above, n 39, ch 6.
42. Although it is a mistake always to see trespass in this light: it may, for example, also occur when a person legitimately enten land on a public right of way and then strays off the exact line of the prescribed route.
43. [1932] AC 562 at 580.
44. See, eg, R Dias (gen ed) Clerk and Lindsell on Torts (London: Sweet and Maxwell, 1989, 16th edn) ch1 1; W Rogers Winjeld and Jolowicz on Tort (London: Sweet and Maxwell, 1994,14th edn), chs 5 and 6; M Jones Textbook on Torts (London: Blackstone Press, 1993, 4th edn), chs 2, 3, 4; P Cane Atiyah's Accidents, Compensation and the Law, (London: Butterworth Law in Context, 1993, 5th edn) chs 2, 3, 5; R Heuston and R Buckley Salmond and Heuston on the Law of Torts (London: Sweet and Maxwell, 1992, 20th edn) ch 9; B Markesinis and S Deakin Tort Law (Oxford: Clarendon Press, 1994, 3rd edn) chs 2 and 3.
45. For possible reasons for, and criticism of, this principle and the distinction between nonfeasance and misfeasance, see Cane, above, n 44, pp 63–67; Markesinis and Deakin, above, n 44, pp 129–134.
46. Cane, above, n 44, pp 63–64; Markesinis and Deakin, above, n 44, p 129.
47. (1867) LR 2 CP 371.
48. Although statute may require the abatement of certain nuisances: see, eg Highways Act 1980, ss 146, 154, 164.
49. [1994] 3 All ER 467. Norfolk County Council have been given leave to appeal to the House of Lords (see [1994] 1 WLR 1426), although their solicitors have indicated that the appeal is not due to be heard until 1996.
50. The plaintiff's claim against the defendant had been settled but the defendant had joined the highway authority as a third party, alleging that it was in breach of its statutory duty and negligent in failing to take effective measures to reduce the risk to road users at what was known to be a dangerous junction
51. The statutory duty in question was under the Highways Act 1980, s 41 which relates to the maintenance of the highway, and which it was held could not extend to land adjoining the highway.
52. The duty of care arose in part because of the power vested in the highway authority under the Highways Act 1980, s 79 to serve a notice on an adjoining landowner directing him to alter any wall (defined to include bank) where the highway authority deems it necessary for the prevention of danger arising from obstruction to the view of persons using the highway. The cost to the recipient of the notice can be recovered from the highway authority under the Highways Act 1980, s 79(12).
53. [1994] 3 All ER 467 at 480.
54. Cane, above, n 44. pp 70 72.
55. Cane, above, n 44, pp 67–69; in the context of nonfeasance, see Kirkham v Chief Constable of rhe Greater Manchester Police [1990] 3 All ER 246; White v Jones [1995] 1 All ER 691.
56. Particularly, perhaps, where the occupier of the land is a public authority discharging public responsibilities: see comments in Brady v Northern Ireland Housing Executive [1990] NI 200 at 216, per Hutton LCJ.
57. This would, in effect, be a start to treating public rights of access to land along rights of way as positive Hohfeldian claim-rights, entailing a range of positive correlative duties on the part of those with controlling private rights in the land: see Hohfeld, above, n 10; Becker, above, n 12, pp 11–12.
58. [1976] 1 QB 912.
59. This placed the railway company under a duty to ‘erect and at all times maintain good and sufficient gates or stiles on each side of the railway’ where it crossed ‘any highway’.
60. [1976] 1 QB 912 at 921–922, per Lord Denning MR; at 925–926, per Scarman LJ; compare at 928–929, per Goff LJ.
61. Ibid, at 923, per Lord Denning MR; at 927, per Scarman LJ. The former's comment (at 923) that any common law duty would be ‘similar to that imposed by section 61’ must be suspect since he regarded the s 61 duty as ‘absolute’, and there appears to be no authority for an absolute common law duty in this context.
62. Although the Board were held entitled to an indemnity from the Council.
63. [1976] 1 QB 912 at 923, per Lord Denning MR.
64. Ibid, at 927, per Scarman LJ. The third judge, Goff LJ, decided for the plaintiff because ‘it was negligent on the part of the board to provide a stile which was from the start inadequate and to suffer it to be out of repair’: Ibid, at 931.
65. A view supported by a number of commentators: see Dias, above, n 44, p 717; Jones, above, n 44, p 199; Rogers, above, n 44, p 229, n 46 (compare the 12th edn (London: Sweet and Maxwell, 1984), p 209, n 63 where it was commented that Thomas ‘does not seem to be [a case] of pure nonfeasance’).
66. [1972] AC 877.
67. [1976] 1 QB 912 at 927, per Scarman LJ.
68. See R Buckley ‘The Occupiers’ Liability Act 1984–Has Herrington Survived?' [1984] Conv 413 at 415–416; Jones, above, n 44, pp 199–200. For the purposes of this paper, we adopt the approach of, inter alia, Dias above, n 44, pp 482, 493, and Markesinis and Deakin above, n 44, pp 286, 288, in treating the Herrington duty of common humanity as a particular application of the duty of care under the law of negligence.
69 .British Railways Board v Herrington [1972] AC 877 at 909, per Lord Morris; see also at 922–923, per Lord Pearson; at 941–942, per Lord Diplock; Penny v Northampton Borough Council (1974) 72 LGR 733 at 742, per Megaw W; at 744, per Stephenson LJ; J Mesher, ‘Occupiers, Trespassers and the Unfair Contract Terms Act 1977’ [1979] Conv 58 at 63. Compare Hansard 444 HL (5th series) col 701, Lord Hailsham LC, 8 November 1983.
70. See British Railways Board v Herrington [1972] AC 877 eg at 898–899, per Lord Reid; at 937 and 941, per Lord Diplock.
71. Ibid at 898–899, per Lord Reid.
72. A Goodhart ‘The Herrington Case’ (1972) 88 LQR 310 at 311.
73. 444 HL Hunsurd (5th series) col 701, Lord Hailsham LC, 8 November 1983.
74. [1990] NI 200, CA (NI); see D McMillen [1991] NILQ 138; Law Reform Advisory Committee for Northern Ireland, above, n 39, ch 3.
75. [1995] 1 AC 233; see T Sutton [1995] Conv 57 at 58.
76. In each case, the plaintiff also argued that s/he was a ‘visitor’ of the defendant for the purposes of s 2 of the Occupiers' Liability (Northern Ireland) Act 1957, but this argument was rejected on the basis of the English case of Greenhalgh v British Railways Board [1969] 2 QB 286, and the Occupiers' Liability (Northern Ireland) Order 1987, above, n 32, arts 3 (7), (9).
77. (1867) LR 2 CP 371.
78. Unreported, LEXIS transcript, 8 January 1988, QBD.
79. [1990] NI 200 at 225 (emphasis in original). The treatment of Thomas in the recent discussion paper by the Law Reform Advisory Committee for Northern Ireland (above, n 39) is similarly inadequate: see para 3.7, n 6.
80. Neither was Thomas referred to by the Court of Appeal in Northern Ireland in McGeown: unreported, LEXIS transcript, 13 May 1993. It is conceivable that the House of Lords in McGeown did not refer to Thomas because Brady had already rejected it but, given the relevance of Thomas to the issue on appeal in McGeown, one would have at least expected this fact to have been mentioned.
81. Unreported, LEXIS transcript, 8 January 1988, QBD.
82. See the English Occupiers' Liability Act 1984, the Occupiers' Liability (Northern Ireland) Order 1987 and the Occupiers' Liability (Scotland) Act 1960.
83. As regards Northern Ireland, see the Roads (Northern Ireland) Order 1980; as regards England and Wales, liability was introduced by the Highways (Miscellaneous Provisions) Act 1961, s 1, and is now contained in the Highways Act 1980, ss 41(1), 58.
84. [1990] NI 200 at 216 and see generally at 216–218.
85. [1972] AC 877.
86. [1929] AC 358.
87. [1961] NI 26 at 44.
88. [1994] 3 All ER 467; see above, notes 49–53 and associated text.
89. Ibid, at 481.
90. Ibid.
91. See Hohfeld, above, n 10 and associated text; Honoré above, n 2, pp 165–168.
92 .D Walker Principles of Scottish Private Law (Oxford: Clarendon Press, 19881999), Vol II, Book IV, p 603; on trespass generally in Scotland, see Ibid, pp 663–665.
93. See Johnstone v Sweeney [1985] SLT (Sh Ct) 2, esp at 5, per Sheriff D Kelbie. On rights of way in Scotland, see Rights of Way: A Guide to the Law in Scotland, above, n 9; Shoard, above, n 9, pp 360–369; Walker, Above, n 92, Vol III, Book V, p 118.
94. Section 2(1).
95. [1995] 1 AC 233 at 243. Similar concerns were expressed by the Law Reform Advisory Committee for Northern Ireland, above, n 39, ch 4, and The Pearson Commission, above, n 34, para 562.
96. See McClone v British Railways Board 1966 SC (HL) 1 at 11, per Lord Reid; P M North Occupiers' Liability (London: Butterworths, 1971), pp 194–196;Walker, Above, n 92, Vol II, Book IV, p 603.
97. (1867) LR 2 CP 371.
98. The problem of having a number of different legal frameworks was also alluded to in the Northern Ireland context by the Law Reform Advisory Committee for Northern Ireland, above, n 39, para 6.3.
99. The phrase is Waldron's: above, no 1, ch12.
