Personal Injury: Occupiers’ Liability

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Personal Injury: Occupiers’ Liability

Occupier’s’ liability comes into effect when the injured party sues the property owner under common law based on negligence and/or personal injury. Occupier liability cases could be complicated and there are many factors to be considered. Contact us and we will explain you the law and the options you have.

There are not too many types of claims and most of them include the following:

  • slips and falls
  • stress and anxiety due to elevator malfunction
  • falling objects
  • falls on defective stairwells
  • fall from a defective terrace or balcony
  • parking ramp falls

Occupier

According to the Occupiers’ Liability Act, “occupier” includes:

  • a person who is in physical possession of premises, or
  • a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises

Premises

“Premises” means lands and structures, or either of them, and also includes:

  • water
  • ships and vessels
  • trailers and portable structures designed or used for residence, business or shelter
  • trains, railway cars, vehicles and aircraft

Tenants, Licensees, and Independent Contractors

Both tenants and licensees will be occupiers of property where they live. Licensees will usually share the status of occupier with the owner. Owners of let property will be occupiers of those areas which they have not let by demise and over which they have retained control (such as the common staircase in flat building). If the tenancy agreement imposes upon the owner the duty to carry out repairs, he will be co-responsible with the tenant for the conditions of the premises as occupier. Independent contractors working on the property may also be covered by the concept of “occupier” if they exercise sufficient control over the premises.

“Occupiers’ liability”

“Occupiers’ liability” is a field of tort law, codified in statute, which concerns the duty of care that those who occupy (through ownership or lease) real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.

Occupier’s duty

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. The duty of care applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by the Act to be shown by an occupier of the premises.

Where injury to any person is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor.

Property owners are liable for slip and fall accidents that caused injuries. Claims are usually successful if it can be proved that the owner/occupier breached their “duty of care”, in other words, a person has to be treated right whilst he or she is in the care of another person. Once a property owner’s negligence has been established, a court would most likely award a financial compensation.

The occupier will not normally be liable for damage caused by the negligence of persons who were carrying out work on his premises, such as independent contractors. So, if damage was caused by a faulty maintenance of lifts, the occupier will not be liable because this damage was the result of other persons’ negligence. Nevertheless, the occupier may still be liable for an injury if:

  • was not reasonable in employing the contractor;
  • did not make sure that the contractor was sufficiently competent; or
  • did not properly supervise the contractor’s work,

Effective warning

A warning will only serve to discharge the occupier’s duty with respect to the danger if it enables the person to whom the duty is owed to be reasonably safe. The warning must therefore be sufficiently clear about the danger and ways of avoiding the danger must be readily available. In determining this, the courts will consider the following factors:

  • How specific was the warning? Did it make the nature of the danger clear? A simple “do not touch” or “enter at your own risk” may not be sufficient warning, since it does not put people in notice of any danger to themselves.
  • The nature of the danger. Was it hidden or apparent? A warning of a hidden dangers must clearly be more express.
  • The type of visitor? Not all visitors may be able to understand the warning, as may be the case with small children or foreign tourists who do not read English.
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Author: AllOntario Team

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