OCCUPIERS’ LIABILITY: WHAT TO DO TO AVOID LIABILITY
‘An occupier’ is someone who has a sufficient degree of control over premises. It is therefore important to note that an occupier does not have to be the legal owner of a premise, but could also include, for example, an independent contractor working on the premises. It is possible to have multiple occupiers of the same premise. Premises can include anything from buildings to car parks, shops or scaffolding.
Occupiers have a legal duty of care towards certain individuals that may come onto their premises. Occupiers owe this duty to visitors, the likes of which is outlined in the Occupier’s Liability Act 1957, and to trespassers, which is outlined in the Occupier’s Liability Act 1984. Different duties are owed depending on whether the person is a visitor or a trespasser.
If an occupier fails to fulfil his duty (in which case he has ‘breached’ his duty), then it may be possible to sue him. A simple example could be where a visitor enters a museum to view an exhibition, and whilst walking around, trips on a loose cable on the floor, breaking their leg. The museum has failed in its duty to protect its visitors. It may therefore be possible to sue the museum for the damage the visitor has suffered.
What Does an Occupier’s Duty to Visitors Consist of?
The duty that occupiers owe to visitors is to ensure that they have taken reasonable care to see that visitors are reasonably safe in using their premises. Liability can only arise from the state of the occupier’s premises.
A higher degree of care is required where the visitor is a young child or an elderly person.
How to Fulfil Your Duty
If you are an occupier, and you are aware of a danger that could arise from the state of your premises (or have reasonable grounds to believe a danger exists), you must take reasonable steps to offer protection to visitors.
One way to fulfil this duty is to display an adequate warning sign, which refers to the specific danger of the premises. It is not enough to erect a sign which merely states ‘Beware’, or ‘Danger’. The warning should be displayed somewhere prominent where potential visitors will notice it and be able to read it before entering the premises. As an occupier, you must also consider what type of visitors will be entering your premises. If it is likely that some of them will not be able to read English, then a warning sign in English will not alleviate your obligations.
Another way to fulfil your duty is through a sufficient exclusion notice. If you erect a clearly worded notice, which covers potential loss that could occur from a danger on your premises, it may be sufficient for you to escape liability.
What Does an Occupier’s Duty to Trespassers Consist of?
An occupier’s duty towards a trespasser is more limited than the duty he owes to a visitor. A trespasser is someone who enters premises without invitation from the owner/occupier. In this situation, an occupier only owes a duty to the trespasser if he is aware of the existence of a danger, he knows/has reasonable grounds to believe that the person is in the vicinity of the danger, and he should be reasonably expected to offer the person some protection.
Failure to adhere to this duty could result in civil action.
How to Fulfil Your Duty
As has been mentioned, the use of adequate warning signs on the premises may fulfil your duty.
Additionally, in certain circumstances it is also a good idea to use discouraging measures in addition to a warning sign. This could take the form of barriers around obstructions/dangers.