During the holiday season, many of you (businesses and private residences) open your doors to customers, family members and friends.

It is important for you to remember your obligations if you have possession or control of premises, thereby making you an “occupier” for the purposes of the Occupier’s Liability Act (“the Act”). If not, you may be surprised how an incident on your premises may transform fun, frolic and festivity into a hotly contested law suit and protracted litigation.

The owner of property, if he is in possession, will be deemed to be the occupier of the premises. However, if it is leased to a tenant, for example, the tenant is deemed to be the occupier of the premises. The Act provides that if the landlord is responsible for the maintenance or repair of the premises and he defaults on his obligation thereby causing injury to a visitor, the landlord may be liable to the visitor in respect of the injury.

Section 3 of the Act provides that an occupier of premises owes a common duty of care to his visitors. The common duty of care is the duty of the occupier 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 purposes for which he is invited or permitted by the occupier to be there.

The occupier must also be prepared for children to be less careful than adults. As such, it will not be a defence for an occupier to say that a child refused to sit still thereby causing his own demise, if the occupier did not take any step to remove objects or conditions which would be inherently hazardous to children.

The Act provides that an occupier may extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise. Of course, your premises would not be popular if each visitor is asked, prior to entering, to sign a document indicating that each visitor enters at his own risk and should have no claim against the occupier for any damage or injury, howsoever caused. Depending on all the circumstances of the case, a prominent sign at the entrance of your premises may suffice to warn visitors that they enter at their own risk. However, such a sign may have the obvious effect of making your visitors (who may include your valued customers/clients) quite concerned about their safety while on your premises.

It is, therefore, important to ensure that you maintain your premises in a state of good repair and free from hazards. You may wish to delegate the maintenance or repair of your property to an independent contractor. If injury is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor, you will not without more, be liable for the danger. However, you must prove that in all the circumstances you:

a) acted reasonably in entrusting the work to an independent contractor; and

b)had taken all reasonable steps to satisfy yourself that the contractor was competent and that the work had been properly done.

You should note that an occupier is not absolved of liability in respect of injury to a visitor merely because he warned the visitor of the danger. The Act requires that the warning must in all the circumstances be “enough to enable the visitor to be reasonably safe”. A warning may be verbal or written. In a decided case, the Court found that 12 clear “Caution-Wet Floor” signs which were placed around a wet area in an airport, the signs being reasonably positioned (not too low or too high), were sufficient warning to make the premises “reasonably safe”. The Court, therefore, found that the sole cause of the injury to the Claimant who slipped on the premises was her failure to do what was reasonable to safeguard herself.

We wish for you all a safe and enjoyable holiday season.

Shuana-Kaye Hanson is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Shuana-Kaye may be contacted via Shuana-Kaye.Hanson@mfg.com.jm or www.myersfletcher.com.