2) The Modern Common Law of Occupiers' Liability

Throughout the twentieth century there was a process of covert and active judicial reform of the classical common law of occupiers' liability. Covert activism includes the use of a number of techniques by judges that permit traditional doctrines to be applied in a more pro- plaintiff manner. For example, at the margins, plaintiffs may be assigned to a higher category of entrant than they strictly deserve in order to apply a more favourable standard of care. It is not uncommon for child trespassers to be categorized as licensees on the basis of some fictionalized consent. The courts may also elevate certain classes of licensees, such as visitors to health-care facilities, public libraries, and educational institutions to the status of invitee. Furthermore, the individual standards of care are sufficiently flexible to permit a generous pro- plaintiff application. Occupiers' liability rules may also be circumvented by a finding that the defendant is not an occupier or that the plaintiff's injury arose from the occupier's activities rather than a static defect, thereby permitting negligence rules to apply. These stratagems provide more justice in individual cases but are productive of greater uncertainty. Covert activity has been supplemented by an open adjustment of some of the more draconian aspects of classical doctrine. Not surprisingly, particular attention has been paid to the standard of care owed to trespassers and licensees. The main problem in respect of the low standard of care owed to trespassers under the classical doctrine was that it treated all trespassers alike. No differentiation was made between persons who entered the property for criminal purposes, children who lost their way, and adults who mistakenly had exceeded the terms of their licence. The Supreme Court addressed this problem by adopting a more generous standard of care. [Note 46: Veinot v. Kerr-Addison Mines Ltd., [1975] 2 S.C.R. 311.] An occupier who knows of the presence of a trespasser or knows that the presence of a trespasser is likely must act with common humanity to prevent injury from dangers of which he is aware. The obligation is not an onerous one. There is no duty on the occupier to inspect his property for dangers, and the very discretionary standard of common humanity allows the courts to tailor the standard of care with reference to the degree of danger on the land, the age of the trespasser, the reason why the trespasser came onto the property, the knowledge and resources of the occupier, and the cost of preventive measures. Often, a warning of the dangers on the property will be sufficient to discharge this obligation to adults. Greater precautions may be necessary to protect children. The standard of common humanity has the advantage of permitting the courts to discriminate between deserving and undeserving trespassers without imposing an intolerable burden on occupiers.

The key problem in respect of licensees was that the classical doctrine dictated a low standard of care to a wide range of visitors to public places and non-commercial private property to whom an obligation of reasonable care seemed more appropriate. Consequently, the standard of care was reformulated in a way that, to a large extent, closes the gap between the standard of care owed to licensees and that owed to invitees. The conventional wisdom now is that an occupier must take reasonable care to protect a licensee from an unusual danger of which the occupier knows or ought to know because he is aware of the circumstances. [Note 47: Bartlett v. Weiche Apartments Ltd. (1974), 7 O.R. (2d) 263 at 267 (C.A.).] It appears that the one remaining difference is that an occupier is under an obligation only to invitees to inspect his land for unknown dangers. This gradual coalescence of the standard of care to lawful visitors has recently been completed in Newfoundland. In Stacey v. Anglican Church of Canada (Diocesan Synod of Eastern Newfoundland and Labrador), [Note 48: [1999] N.J. No. 275 (C.A.) (QL).] the Court of Appeal swept away the common law rules of occupiers' liability in respect of lawful visitors. The Court held that an occupier, in respect of both the condition of the property and his activities on the property, owes a duty to all lawful visitors to take such care as is reasonable, in the circumstances, to see that they are reasonably safe while on the premises.