{"id":6949,"date":"2020-04-16T13:25:33","date_gmt":"2020-04-16T17:25:33","guid":{"rendered":"https:\/\/martingeorge.net\/?p=6949"},"modified":"2023-11-22T22:09:16","modified_gmt":"2023-11-23T02:09:16","slug":"article-ten-legal-topic-occupiers-liability","status":"publish","type":"post","link":"https:\/\/martingeorge.net\/v2\/index.php\/2020\/04\/16\/article-ten-legal-topic-occupiers-liability\/","title":{"rendered":"Article Ten – Legal Topic \u2013 Occupier\u2019s Liability"},"content":{"rendered":"

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By: Sara Martinez<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Attorney-at-Law<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Martin George and Co. <\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Attorneys-at-Law<\/strong><\/p>\n

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MAGCO DAILY LEGAL LESSONS<\/a><\/strong><\/sup><\/p>\n

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DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.<\/strong><\/sup><\/p>\n

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INTRODUCTION <\/u><\/strong><\/p>\n

In Trinidad, Occupiers Liability is governed by Common Law. There is a duty on the Occupier of a premises to exercise reasonable care to prevent damage to visitors on his premises. This duty is not an absolute one, that is, the occupier is not under an absolute duty to prevent any and all damage to someone on his premises. Once he exercises reasonable care and does all that is necessary, then he has satisfied his duty.\u00a0<\/p>\n

A visitor to a premises may be entitled to compensation, depending on the circumstances of the case, for any damage which he may have suffered while on the Occupier\u2019s premises due to any dangers which were unknown to the visitor. Very common examples of this are like if you slip and fall on water on the floor of a supermarket or other businessplace, where there is no warning sign or Notice warning of the slip and fall danger. Other examples will be like at a public outdoor event at a venue, where there may be open trenches or jutting exposed pieces of wire or iron which pose dangers to patrons, then the owner or the premises along with possibly the Promoter of the event can be held liable for any damage to Patrons from such obvious dangers.<\/p>\n

WHO IS AN OCCUPIER?<\/u><\/strong><\/p>\n

Wheat v Lacon [1966] AC 552 <\/u><\/em><\/strong>states that an Occupier is anyone who exercises a sufficient degree of control over the premises. \u201cThe foundation of Occupier\u2019s Liability is occupational control, that is to say, control associated with and arising from presence in and use of or activity in the premises\u2026\u2026<\/em><\/p>\n

Whenever a person has a sufficient degree of control over premises that he ought to realise that any failure to use care may result in injury to a person coming lawfully there, then he is an \u201coccupier\u201d and the person coming lawfully there is his visitor: and the \u201coccupier\u201d is under a duty to his \u201cvisitor\u201d to use reasonable care.\u201d<\/em><\/p>\n

This definition was further expanded on in the local Trinidad & tobago case of\u00a0 Aaron Jairam v Trincan Oil Limited and ors. CV2010-04153:<\/u><\/em><\/strong><\/p>\n

\u201cIn practice anyone is likely to be regarded as an occupier for these purposes if he has sufficient degree of control over premises to be able to ensure their safety and to appreciate that a failure on his part to use care may result in injury to a person coming on them. The Defendant need not have entire control; he need not have exclusive control. Equally there may be more than one occupier of the same premises under a duty of care dependent on his degree of control.\u201d<\/em><\/p>\n

Therefore, an Occupier is anyone who is responsible for the state of a premises or any person who has sufficient control over the premises. This may sometimes include tenants of a premises. To be considered an occupier, one does not need to have exclusive occupation of the premises, once the person has some degree of control associated with the premises.<\/p>\n

DUTY OF CARE OWED TO VISITORS<\/u><\/strong><\/p>\n

In Trinidad and Tobago, the duty of care which the occupier owes to the person on his premises depends on the category that the person belongs to, whether as an invitee, licensee or a trespasser<\/strong> onto the premises. It is therefore necessary to distinguish between these three categories.<\/p>\n

In the T&T case of David Sinanan and Dilmatie Sinann v Maniram Maharaj and High Clear Stud Farm CV2008-00556<\/u><\/em><\/strong> Hamilton L.J. in the case of Latham v R. Johnsons\u00a0 & Nephew Ltd. [1913] 1 KB 398 <\/u><\/em><\/strong>was quoted. In that case the duties owed by the occupiers of land to trespassers, licensees and invitees were discussed:<\/p>\n

\u00a0\u201cWhere a question arises, not between parties who are both present in the exercise of equal rights inter se, but between parties of whom one is the owner or occupier of the place and the other, the party injured, is not there as of right, but must justify his presence there if he can, the law has long recognised three categories of obligation. In these the duty of the owner or occupier to use care, if it exists at all, is graduated distinctly, though never very definitely measured. ….Contractual obligations of course stand apart. The lowest is the duty towards the trespasser. More care, though not much, is owed to a licensee\u2014more again to an invitee. <\/strong>The latter term is reserved for those who are invited into the premises by the owner or occupier for some purpose of business or of material interest. Those who are invited as guest, whether for benevolence or for social reasons, are not in law invitees but licensees. The law does not take account of the worldly advantage which the host may remotely have in view. ……The owner of the property is under a duty not injure the trespasser wilfully;<\/strong> \u201cnot to do a wilful act in reckless disregard of ordinary humanity towards him\u201d; but otherwise a man \u201ctrespasses at his own risk.\u201d … The rule as to licensees too is that they must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them.\u201d<\/em><\/p>\n

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Invitees:<\/u><\/strong><\/p>\n

An invitee is any person who enters onto the occupier\u2019s premises with his express or implied consent. This is usually where there is some material benefit to the occupier.<\/p>\n

An Occupier does not have a duty to prevent all damage to an invitee, but the Occupier must use reasonable care to prevent damage to the invitee from any unusual dangers which the occupier knows of or ought to know about, and which the invitee did not know of or which they could not have been aware. Where an unusual danger exists on the premises, the Occupier must take adequate steps to bring to the attention of the invitee and prevent harm to the invitee from these unusual dangers.<\/p>\n

The case of Indermaur v Dames (1866) LR 1 CP 274, <\/u><\/em><\/strong>which has been discussed in recent law in our local T&T case of Taxyna Dunbar v Dr. Joao Havelange Centre of Excellence CV 02329-2016<\/u><\/em><\/strong> states:<\/p>\n

\u00a0\u201cthe invitee using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know.\u201d<\/em><\/p>\n

In Taxyna Dunbar v Dr. Joao Havelange Centre of Excellence (supra)<\/u><\/em><\/strong>, the case of Indermaur v Dames (supra)<\/u><\/em><\/strong> was further quoted. To be considered an invitee and to be treated as such, a person must have entered the premises \u201cupon business which concerns the occupier, and upon his invitation, express or implied.\u201d <\/em>If the person fails to establish this, then a lesser duty of care would be owed to them by the Occupier. For example, a customer in a supermarket or a member of the public who visits a space which invites members of the public, such as a zoo or nature reserve, would be considered as invitees once the enter the premises as lawful visitors.\u00a0<\/p>\n

Unusual Danger:<\/u><\/p>\n

To be considered as an unusual danger, the alleged danger should be something which the invitee did not know of, nor could the invitee have been aware of same. What constitutes \u201cunusual danger\u201d was discussed in the following cases:<\/p>\n

In Ana Carolina Barry Laso and Yanik Quesnel v Tobago House of Assembly, Pigeon Point Heritage Park Limited and the Attorney General of Trinidad and Tobago CV2008-02722: <\/u><\/em><\/strong>damage was caused to the Claimants from a motor boat being driven close to shore on Pigeon Point Heritage Park, where the Claimants were bathing in the adjacent waters. The risk of injury from boats was not considered as a danger usually faced by sea-bathers while bathing in close proximity to shore, and thus constituted an unusual danger. It was found that the Defendants in that matter, as occupiers of the premises, should have warned bathers of the presence of boats traversing the adjacent water in Pigeon Point Beach by way of the erection of signs, and this was the action that a reasonable person in their situation would have taken to guard against the foreseeable risk of injury that existed. It was further stated that the Occupiers should have also demarcated a safe area for bathing with the presence of ropes or buoys to discharge the duty of care which they owed to bathers.<\/p>\n

In the local case of Rhonda De Leon v the Port Authority of Trinidad and Tobago and Port of Spain Infrastructure Company Limited CV2016-00612<\/u><\/em><\/strong> the Claimant sought compensation after she fell down a staircase situate in the Defendants\u2019 building. A report conducted by a Senior Inspector at the Occupational Safety and Health Agency was used as evidence and it was found that the staircase in that case was in breach of safety standards required for staircases. Based on this report it was found that the Second Defendant failed in their duty to take reasonable care to safeguard the Claimant from unusual dangers by having a defective staircase.<\/p>\n

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In the local case of Betty James v The Attorney General of Trinidad and Tobago CV2010-05009: <\/em><\/strong><\/u>The Claimant\u2019s case established that there was negligence by the Defendant in not having a handrail on a flight of stairs which were descended by the Claimant, as the absence of a handrail on that flight of stairs constituted an unusual danger. So the Defendant was held liable for Damage to the Claimant.<\/p>\n

Kirpalani\u2019s Ltd. v Wilma Hoyte Civ App 77 of 1977: <\/u><\/em><\/strong>the alleged danger was a cleaning substance on the floor, which caused the floor of the premises to become slippery and dangerous to customers. In that case is was stated that it was incumbent on the Claimant to show:<\/p>\n

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  1. That the substance on the floor caused her to slip<\/li>\n
  2. That the substance on the floor constituted an unusual danger and<\/li>\n<\/ol>\n