People are often injured when visiting the property of another which raises the issue of whether the occupier is liable for the injuries and losses incurred.
The Occupiers’ Liability Act 1957 (‘OLA’) imposes a duty on occupiers to ensure that all visitors are reasonably safe for the purposes for which they are invited or permitted to be there.
A leading case is Wheat v E Lacon and Co Ltd (1966) in which a man fell down a set of steps and was killed while a paying visitor to a public house. The handrail stopped short of the end of the staircase and someone had removed the light bulb at the top. An issue in determining liability was whether the publican had sufficient ‘occupational control’ of the premises to be deemed an ‘occupier’ for the purposes of OLA. In this instance they did not and the claim failed.
The matter was recently re-visited by the Privy Council in Shtern v Cummings (Jamaica) (2014). A woman was injured when she received an electric shock from a hotel refrigerator. She pursued damages from the hotel owner, manager and the land owner upon which the hotel was built.
The case was dismissed at first instance due to the paucity of the expert evidence regarding the refrigerator which was examined by experts, but only 10 years after the event.
In reversing the decision, the Court of Appeal held that as both experts had agreed an electric shock from the appliance was possible, there was a prima faciecase in negligence against the hotel owner and manager, which had been unanswered. It remained the position however that the land owner was not liable as she was not the owner of the hotel, had no responsibility for the staff and was not present at the time, therefore lacking sufficient ‘occupational control’ under OLA. The injured party appealed.
In upholding the original decision the Privy Council decided that no duty of care was owed because the land owner had not supplied the refrigerator and was not responsible for its maintenance.
The decision brought to an end a long running case which had raised some interesting points of law on the role and responsibility of occupiers. Despite the decision, accident victims should not be put off from pursuing such claims because it is the facts of any given case which help the court to determine ‘occupational control’ and therefore the issue of liability. If the court takes the view that the occupier ought to have realised that their lack of care could cause damage to lawful visitors and it does, they will likely be held liable for any injuries and loss sustained as a result.