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.

Assuming that a res gesta situation has arisen, it may now be considered what forms the declaration may take. Presumably the declarant will not be held to all those niceties of speech which are exacted from a witness: a declaration will not be excluded because it asserts or denies the very fact to be determined by the court. If in Comm. v. Hackett the deceased had said: “Dan Hackett has murdered me,” it would have been as admissible as his actual statement that Hackett had stabbed him. It is further submitted that the general rule excluding opinion evidence should similarly be relaxed in the case of a statement part of the res gesta. In some cases, an utterance that might have qualified for admission as part of the res gesta has been rejected as opinion. But such a statement seems to have been received in R. v. Palmer, where Fisher was allowed to testify that at Shrewsbury, six days before his death, Cook said to him, about ten minutes after drinking a glass of brandy with Palmer and others, not merely that he had been very sick but also, despite the objection of defence counsel, that “that damned Palmer had dosed him.” The reference to Palmer seems to have been based purely on conjecture. The general rule against opinion evidence is based upon two considerations, first that opinions in so far as they are based upon no evidence are worthless, and second that in so far as they are based upon legal evidence they tend to usurp the function of the tribunal whose province alone it is to draw conclusions of law or fact.

The purpose of this article is to give an explanation reported by Lord Nottingham about three-quarters of the way through the seventeenth century of the legal reasons justifying the resurrection of equitable estates by way of trusts after the Statute of Uses in 1535 had gone a long distance towards extirpating equitable estates in land. This explanation turns to a large degree on a restrictive interpretation of the first section of the Act, which is as follows—

“That where any person or persons…at any time hereafter shall…be seised, of and in any…hereditaments, to the use confidence or trust of any other person or persons or of any body politic, by…any…means whatsoever,…in every such case all and every such person or persons and bodies politic that…shall have any such use confidence or trust…shall…be…deemed and adjudged in lawful estate seisin and possession of and in the same…hereditaments,…to all intents constructions and purposes in the law, of and in such like estates as they had or shall have in use trust or confidence of or in the same.”

The law relating to charitable trusts is sadly technical and proverbially obscure. It has failed, it is said, to keep abreast of social developments and has thus attracted widespread criticism.