Occupiers' Liability Explained: Legal Responsibilities & Risk Management
Occupiers' liability refers to the legal obligations imposed on an occupier of premises regarding any harm experienced by any visitors to the premises. In Jamaica, our laws regulate the duty owed by an occupier to visitors, particularly concerning dangers arising from the condition of the premises, or certain acts (or omissions) on the property. Occupiers’ liability claims can occur in almost any business environment. Industries at higher risk of such claims include hotels, tourist attractions, water sports and recreational activities, supermarkets and other retail outlets, shopping malls, and restaurants—sectors that form the backbone of Jamaica’s vibrant commercial and tourism industries.
Under the Occupiers' Liability Act of Jamaica (OLA), an occupier owes a common duty of care which involves a duty to take such care that is reasonable in all circumstances to ensure visitors are safe whilst on the premises. Premises include not only fixed property such as land and buildings but also movable structures such as aircraft, vehicles, or vessels. In determining whether an occupier has discharged such duty of care, all circumstances of a particular situation will have to be taken into consideration. The common duty of care requires an occupier to consider the degree and level of care required for different types of visitors. This includes accounting for the fact that children may be less careful than adults. Additionally, an occupier can expect that professionals performing their duties will recognize and protect themselves against risks inherent to their work, as long as they are allowed to do so.
Who is an Occupier and who is the visitor?
The OLA defines an occupier as the person or entity in control of a premises. This could be the owner of the premises, the landlord, the tenant, the contractor or the management company—essentially anyone with occupational control associated with and arising from the presence in and use of the premises. Importantly, it is control, not ownership, that determines who qualifies as an occupier under the law. It is critical for a business to know and understand whether they are the occupier of premises and what obligations attach to their role as occupiers. For instance, the operator of a hotel may be reasonably considered to be the occupier of premises as opposed to the owner of the property or the management company responsible for leasing the property. A tenant renting office space forming part of a commercial complex may be considered the occupier of the space utilized by them as opposed to the owner of the commercial premises. However, under the OLA where the landlord has an obligation to effect maintenance or repairs to the leased premises, the landlord will owe an obligation to all persons who may be on the premises as if he were the occupier and those persons were there by his invitation or permission. There is also room, in certain cases, for more than one occupier of the same premises (co-occupiers).
The common duty of care is owed to all visitors which includes invitees and licensees. The occupier is free to extend, restrict, modify or exclude his duty to any visitor. Although trespassers are not explicitly included under the OLA, under common law, an occupier should still take reasonable steps to prevent harm to trespassers. Warning notices, fencing and other methods can be considered as reasonable endeavours on the part of the occupier to deter trespassers and by extension minimize harm.
While the OLA imposes a duty of care on occupiers, there are limits to their liability in so far as warning visitors of a particular danger. Although an occupier can provide warnings about risks, merely issuing a warning does not automatically absolve them of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. Additionally, the common duty of care owed to visitors does not impose on the occupier an obligation to a visitor in respect of risks willingly accepted as his by the visitor. The question of whether a risk was so accepted must be determined having regard to all circumstances of a particular case and the overall duty of care owed. For instance, many businesses particularly tourist attractions and outdoor excursions utilise waiver of liability forms. Whereas the utility of such forms can reduce potential liability, these waivers do not absolve the occupier of their duty of care and cannot in all cases guard against liability for all accidents occurring on the premises.
Be Proactive and Not Reactive
Businesses must establish best practices to minimise the inherent risks of harm to members of the public within the context of occupiers' liability law. Although no occupier can safeguard against all risks and is not expected to do so, implementation of some of the measures below could be of benefit to narrowing the potential risks:
1. Conduct risk assessments – Evaluate the premises to identify potential hazards, assess the likelihood of harm, and take appropriate steps to minimize risks to visitors.
2. Routine inspections and maintenance – Carry out regular inspections to detect and rectify potential hazards before any harmful situation arises; Practice routine maintenance of spaces to ensure sufficient upkeep. In a local decision handed down by the Supreme Court against an occupier, the Court found a hardware store breached its common duty of care and was negligent for failing to take sufficient care to maintain a 20-year-old door with a faulty door bolt that detached and injured a sub-contractor whilst on-premises to repair a gate.
3. Ongoing staff training and feedback – Train employees on safety procedures and protocols and encourage them to report any hazards they observe while performing their duties.
4. Utilize warning signs and restricted access measures – Businesses should prominently place warning signs in areas of potential risk such as staircases, protruding fixtures, wet and/or slippery surfaces and uneven surfaces. Areas that could be considered dangerous such as construction zones should be properly cordoned off from general access. The Court of Appeal of Jamaica found a financial institution partially liable for injuries arising from a slip and fall accident occurring on the premises. The court held that the institution failed to position a ‘watch your step’ sign in a prominent enough position to be viewed by all patrons who utilise the entrance stairs, particularly where these stairs were considered to pose some danger. The injured party was also considered contributorily negligent for failing to keep a proper lookout whilst traversing the stairs, particularly as she previously used the stairs that same day.
5. Screen third-party vendors and independent contractors – Where an occupier engages third-party vendors or contractors to provide goods or services to the public, due diligence should be exercised to ensure adherence to established safety protocol. In instances where a visitor suffers harm due to the faulty execution of construction, maintenance, or repair work undertaken by an independent contractor, the occupier is not automatically liable. Liability may arise however where the occupier failed to act reasonably in selecting a competent contractor or ensuring that the work was properly executed.
6. Invest in public liability insurance –Public liability insurance can indemnify businesses from claims arising from members of the public who may suffer from accidental injury, death or damage to property whilst on the occupier’s premises. Such coverage can seek to prevent a company from incurring expenses to cover claims and legal costs associated with a claim.
An additional mechanism utilised by some business occupiers, for instance between a landlord and tenant or co-occupiers, is through the inclusion of an indemnity clause in the agreement providing for indemnification arising from and against all damage that may arise from the negligent acts or omissions of one of the parties to the agreement, their servants and/or agents.
Protect Your Business
Public liability is not just a legal obligation—it is a critical risk management issue that can significantly impact your business operations, financial stability, and reputation. Failure to appreciate one’s obligations and implement the necessary measures can expose your business to costly claims, legal disputes, and reputational damage.
By understanding your duties under the Occupiers' Liability Act and taking decisive steps to safeguard visitors, you can mitigate risks, protect your business, and uphold the highest safety standards.
If you need expert legal guidance on occupiers’ liability, risk management, or defending a claim, contact our team today. Ramsay & Partners has the expertise to help you navigate compliance, mitigate risk, and protect your business interests.