OCCUPIERS' LIABILITY

Occupiers' Liability forms part of the liability arising from the occupation of premises. This area of law is closely related to nuisance, the precedent case of Rylands v. Fletcher, breach of statutory duty, and, of course, basic negligence principles. In essence, occupiers' liability covers legal responsibilities for damage typically manifesting as personal injury that occurs to individuals entering the premises owned or controlled by the defendant, which are referred to as "occupiers".

In the Commonwealth Caribbean, jurisdictions such as Barbados and Jamaica have enacted statutes that closely mirror the English Occupiers' Liability Act of 1957, which provides a legal framework for determining the duties owed by occupiers to visitors. Specifically:

  • Barbados: Occupiers Liability Act, Cap. 208

  • Jamaica: Occupiers Liability Act 1969 (Vol. XIII, Laws of Jamaica)

Conversely, other jurisdictions, including Trinidad and Tobago, rely exclusively on common law principles, yet experts assert that the Occupiers' Liability Acts may essentially be seen as applications of common law negligence principles.

One significant case to reference is New Zealand Ins. Co. v. Prudential Assurance Ltd., [1976] NZLR 84, where it was determined that occupiers' liability might extend to cover conduct that results in ongoing sources of danger, rendering the premises unsafe. This is contrasted in Revill v. Newberry, [1996] 1 All ER 291, which ruled that liability for an occupier shooting an intruder could not be adjudicated under the tort of negligence, highlighting the complexities involved. Regarding the determination of the nature of the duty owed to entrants on the premises, the common law distinguishes between various categories of entrants:

  1. Contractual Entrants:

    • Main Purpose of Contract: Individuals like hotel guests who enter under a contract where the use of the premises is the primary focus.

    • Incidental Purpose of Contract: Individuals such as UWI students who enter for a secondary purpose, with the main contract purpose being unrelated to the premises themselves.

  2. Invitees: Individuals who enter the premises pursuing a mutual interest with the occupier, such as customers in commercial settings.

  3. Licensees: Those who enter with express or implied permission from the occupier, typically for personal purposes, like charity collectors.

  4. Trespassers: Individuals who have no permission to enter the premises and possess at least constructive notice thereof, including burglars.

The respective duties owed to these classes include:

  • Contractual Entrants: A warranty of safety, ensuring that the premises are as safe as reasonable care allows.

  • Incidental Entrants: A duty to ensure reasonable care is taken to ensure safety on the premises.

  • Invitees: A duty to prevent harm from hazards the occupier knew or should have known about.

  • Licensees: A duty to warn against concealed dangers of which the occupier was actually aware.

  • Trespassers: A reduced duty that includes protecting against reckless or intentional harm, with some jurisdictions recognizing the need for humane treatment as exemplified in B.R.R. v. Herrington, [1972] A.C. 877.

The Occupiers' Liability Act has not substantially altered the obligations owed to contractual entrants, instead simplifying the distinctions between invitees and licensees under the umbrella term "Lawful Visitors." In the UK, the Occupiers' Liability Act 1984 provides a framework for trespassers, which remains unenacted in the West Indies. Property definitions include all structures or vessels and were broadened in scope to include movable entities, as demonstrated in Wheeler v. Corpas, [1981] 3 All E.R. 405, where a ladder was deemed "premises".

Definition of Occupiers: Common law and statutory definitions of an occupier denote a party who maintains a degree of control over premises associated with their use or activities occurring therein. This was illustrated in WHEAT v. E. LACONE & CO. LTD., [1966] A.C. 552, where landlords were found liable due to control over unsafe premises.

Visitor Classification: Longstanding judgments indicate that a history of permitting access might imply ongoing permission, despite clear signage prohibiting trespassing. However, if a visitor's behavior contravenes the original terms of their permission, they can be reclassified as a trespasser. In ALCAN (JAMAICA) LTD. v. NICHOLSON (1986), the issue hinged on expected caution, with the court ruling in favor of the occupier due to the trespasser's awareness of the danger.

Common Duty of Care: The occupier must ensure the visitor is reasonably safe for the purposes of their entry. This standard aligns closely with negligence and takes into account numerous factors, including the presence of children and skilled visitors:

  1. For Children: An occupier is held to a higher standard, acknowledging their inherent curiosity and tendency to take risks, as seen in Glasgow Corp'n v. Taylor, [1922] 1 A.C. 44, which addressed the allure of hazardous items.

  2. Skilled Visitors: Courts expect skilled professionals to take precautions against specific risks relevant to their expertise. Notably in Salmon v. Seafarer Restaurants Ltd., [1983] 3 All E.R. 729, and ROLES v. NATHAN, [1963] 1 W.L.R. 1117, the courts relied on the actions expected of professionals when determining liability.

Liability and Warnings: Under the Act, simply providing warnings does not exempt the occupier from liability unless the warnings adequately inform and allow the visitor to navigate hazards safely. This must be considered in light of various types of warnings that impact liability.

Defences to Liability: Occupiers can assert defences such as 'acceptance of risk' (volenti non fit injuria) or exclusion clauses. However, various legal constraints exist under statutory regulations like the Unfair Contract Terms Act that govern how and when liability can be limited.

(3) Independent Contractors
A person is not generally liable for the negligence of his independent contractors. An occupier who employs an independent contractor to execute work will not be in breach of duty if damage results from a faulty performance, provided:
(a) It was reasonable to entrust the work to an independent contractor, which depends on the technicality of the job. In some cases, the occupier would be careless not to entrust the work; as illustrated in Haseldine v. Daw, [1941] 2 KB 343 (maintenance of elevator) and Woodward v. Mayor of Hastings (cleaning icy step).
(b) The occupier has taken reasonable care to ensure that the contractor was competent.
(c) The occupier has taken reasonable care to check that the work was properly done. In cases of highly technical work or suspended unsafe systems, a second opinion might need to be sought. This was also addressed in FERGUSON v. WELSH, [1987] 3 All E.R. 777 (H.L.), where it was indicated that an occupier would not usually be liable for the injury of an employee of a contractor due to unsafe work systems, as it wouldn’t be reasonable to expect the occupier to supervise the contractor.

(4) Warnings
According to the Act, a warning does not automatically absolve the occupier from liability unless it is sufficient to enable the visitor to be reasonably safe in all circumstances—see Roles v. Nathan, [1967] 1 W.L.R. 1177, 1924 per Lord Denning M.R. A distinction should be made between different types of warning notices:
(a) Those that provide knowledge of the danger (e.g., "Caution - Wet Floor"; Weekes v. A.-G. of Barbados (1985) Kodilinye 3 ed. 130-131).
(b) Those that raise a defense (e.g., "Persons park their cars at their own risk").
(c) Those that seek to exclude liability (e.g., "UWI is not responsible for any damage to vehicles in this car park"). These are treated differently.

(5) Defences
(a) Acceptance of risk – See volenti non fit injuria; Simm v. Leigh Rugby Football Club, [1969] 2 All E.R. 923; Brenda Cox v. A.G. (Barbados), [April 20, 1998, unreported].
(b) Exclusion of liability by occupiers of business premises is subject to the Unfair Contract Terms Act where applicable, but there are limits on an occupier's freedom to exclude liability. For instance:
(i) No exclusion possible where there is no right to prohibit entry, as in cases of legal right.
(ii) No exclusion is valid if no reasonable steps are taken to bring notice to the party's attention.
(iii) An occupier is bound by a contract to permit third parties to enter or use the premises as lawful visitors.
(iv) No exclusion applies if notice is made apparent to the visitor only after they have entered the premises.
(c) It's important to note that contributory negligence can reduce damages payable by an occupier.

Liability to trespassers is governed at common law by the case of British Railways Board v. Herrington, [1970] A.C. 877. A pertinent case is KIRTON v. ROGERS, 19 W.I.R. 191, where a six-year-old boy was badly burned by an electrified rail while trespassing. He had entered through a gap in a fence that the public used as a shortcut, and the defendant was found liable. No duty of care is owed as in negligence; however, the occupier has a duty to act humanely when a reasonable person, aware of the physical facts known to the occupier, would recognize that a trespasser's presence in a dangerous area is likely. The likelihood of harm and potential injury severity are critical considerations. It's noted that the standard is not purely objective, as it varies based on the occupier's knowledge, ability, and resources. Where the occupier has created the danger themselves, the responsibilities differ, as seen in Southern Portland Cement v. Cooper, [1974] A.C. 632. Cases such as Manchester Beverages Ltd. v. Thompson suggest that there is little difference between the duties an occupier owes trespassers and the general duty of care in negligence. In the U.K., liability is now governed by the Occupiers' Liability Act 1984. For comparative purposes, key decisions include Revill v. Newberry, [1996] 1 All E.R. 291; Donoghue v. Folkstone Pties Ltd., [2003] 2 W.L.R. 1138; and Tomlinson v. Congleton B.C., [2003] 2 W.L.R. 1120.