Occupiers Liability - The duty of care owed to our visitors


December 28, 2015

In keeping with tradition, there are many individuals (as well as organisations) who will be hosting persons on premises they occupy or which fall under their control during this Yuletide season.

However, in doing so, these individuals (and organisations) will owe a common duty of care to all visitors who come to their premises, except in circumstances where the duty of care is restricted, modified or excluded by agreement. The Occupiers' Liability Act ['the Act'] regulates the duty of care that an occupier of premises owes to his visitors in the light of the state of the premises and the dangers this might cause to visitors.

Under the Act, the common duty of care is the duty to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there. Where children are expected to be on the premises, then the occupier must be prepared for children to be less careful than adults; and so a greater degree of care is required to ensure that children are reasonably safe on those premises.

The occupier of premises may seek to limit his liability by placing a warning sign at a conspicuous place but the warning, without more, will not absolve the occupier from liability unless the content of the warning was sufficient to enable the visitor to be reasonably safe. Therefore, the occupier should be very careful in drafting the content of the notice giving the warning about the danger.

In light of the above, if a pool is on the premises but visitors are not invited to use it, then it could be cordoned off or covered with warning signs that are strategically placed to convey the clear message that the pool is out of bounds to visitors. Further, if bad dogs are on the premises, every effort should be made to ensure that they are properly caged. Also, the occupier must ensure that the visitors have warning notices of slippery spots, low roof and of uneven walking areas. So, signs to indicate 'step up' or 'step down', among other things, could prove useful. There may be circumstances, however, where a visitor, despite the warnings and notices given, accepts the risk and relieves the occupier of the duty of care.

The occupier of premises may also be bound by contract to permit persons to enter unto the occupied premises. some persons that readily come to mind, within this context, are those agents of utility companies who must enter the occupiers' premises to read meters. The duty of care owed to them cannot be restricted or excluded.

Landlords may also owe a duty of care if they are responsible for the maintenance and repairs of premises occupied by their tenants. They could find themselves in breach of the duty of care if their failure to carry out their obligations to maintain and keep the premises in good repair causes a visitor to those premises to be injured.

It is imperative, therefore, that occupiers must ensure that at all times, reasonable care is taken by them to protect visitors from any danger due to the state of their premises. Occupiers doing repairs and improvements might be even more exposed. A word to the wise is sufficient.

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