Accidents happen all the time. They happen in the most unexpected and unpredictable ways and form an inescapable part of the chaotic enterprise that is human existence. Despite the ubiquitousness of petty misfortune, we as a people have persisted. We have found that as unpredictable as accidents are, many of the risks which give rise to them can be foreseen and, if not avoided, then, at least, mitigated. The law has evolved to recognise this.

The law of occupiers’ liability is a sub-specie of the law of negligence that many of us interact with every day. If you have ever walked into a place of business and been greeted by a bright yellow ‘Wet Floor’ sign, you have already encountered occupiers’ liability law. In Jamaica the law is primarily governed by the Occupiers’ Liability Act. In essence, the law places a duty on the proprietors of premises to take reasonable steps to ensure the safety of lawful visitors to those premises. In the main, this duty comes to the fore in the context of a business which attracts customers to its establishment. The duty is referred to as the common duty of care. 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 purposes for which he is invited to be there”.

This duty encompasses a lot and goes beyond mere ‘Wet Floor’ signs. For example, an occupier should ensure that ceilings and stairs are in an adequate state of repair and that electrical fittings, such as switches, are safe. The occupier must give warnings wherever and whenever appropriate. An occupier of a ship could be in breach of duty if he fails to provide adequate lighting for walkways inside the vessel. The law even requires occupiers to “be prepared for children to be less careful than adults” and to take precautions that anticipate a child acting like a child. The law may not require a child to take notice of, and be guided by, a warning sign. More is required, for example, gating a dangerous area in such a way as prevents access by a child. If you operate a business place and are unsure what the common duty of care might be in the context of your establishment, consult an attorney.

It is important to know also that you do not need to be the owner of the premises to be liable if an accident occurs. The occupier is whoever has possession or control of the premises. A commercial tenant in active possession is no less an occupier than the landlord, because the tenant has control of the premises.

Even though the occupier’s duty is generally owed to lawful visitors (his invitees to the premises), in certain circumstances he may be considered to also owe the duty to non-invitees entering the premises. In the early part of the 20th century, it was agreed that no duty was owed to trespassers but, by the time the century turned, the law had evolved to include the duty of ‘common humanity’. Under this duty an occupier must take reasonable steps to deter or warn any possible trespassers to the property and the occupier is prevented from creating deliberate traps which might harm a trespasser.

At the end of the day, it is the duty of all occupiers to be sufficiently careful. All are potentially liable under the occupiers’ liability law. Don’t hesitate to contact your attorney to seek help navigating problem avoidance or problem solving under the law of occupier’s liability.

Jamaiq Charles is an associate at Myers, Fletcher & Gordon and is a member of the firm’s litigation department. Jamaiq may be contacted via Jamaiq.charles@mfg.com.jm or through the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.