Occupiers’ liability generally refers to the duty owed land/premise owners to those who come onto their land.
However, the duty imposed on land/premise owners can extend beyond simple land ownership and in some instances, the landowners may transfer the duty to others, hence the term occupier rather than owner.
The law relating to occupiers’ liability has distinct English origin;
1. Occupiers‟ liability act 1957- which imposes an obligation on occupiers with regard to ‘lawful visitors’
2. Occupies‟ liability act 1984- which imposes liability on occupiers with regard to persons other than ‘his visitors’
In Kenya the law relating to this is contained in The Occupiers‟ Liability Act (cap.34)
What is expected of the occupier?
1. The occupier owes common duty of care to all of his visitors, i.e. “The common duty of care is 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 the occupier to be there.”
2. Visitors are persons who have express or implied permission to enter or use the premise of a person. Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability
a. Invitees – those who have been invited to come onto the land and therefore have express permission to be there
b. Licensees – those who have express or implied permission to be there
c. Those who enter pursuant to a contract – For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.
d. Those entering in exercising a right conferred law – For example a person entering to read the electricity meters.
3. The standard of care varies according to the circumstances. The legislation refers to two particular situations where the standard may vary:
a. An occupier must be prepared for children to be less careful than adults
b. An occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it
4. The occupier is not liable for the negligence of an independent contractor ones he is satisfied that the contractor was competent.
5. The common duty of care does not impose on an occupier any obligation to a visitor who has willingly accepted a risk.
Can the occupier be liable to persons other than his visitors?
At common law, The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons “other than his visitors”. This includes trespassers and those who exceed their permission, though a low level of protection is offered.
The circumstances giving rise to a duty of care
If all three of these are present the occupier owes a duty of care to the non-lawful visitor.
1. He is aware of a the danger or has reasonable grounds to believe that it exists
2. He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger
3. The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
White v Blackmore (1972)
Mr White was killed at a Jalopy car race due negligence in the way the safety ropes were set up. A car crashed into the ropes about 1/3 of a mile from the place where Mr White was standing. Consequently he was catapulted 20 foot in the air and died from the injuries received. Mr White was a driver in the race but at the time of the incident he was between races and standing close to his family. He had signed a competitors list which contained an exclusion clause. There was also a warning sign at the entrance to the grounds which stated that Jalopy racing is dangerous and the organisers accept no liability for any injury including death howsoever caused. The programme also contained a similar clause. His widow brought an action against the organiser of the event who defended on the grounds of volenti and that they had effectively excluded liability.
Held: The defence of volenti was unsuccessful. Whilst it he may have been volens in relation to the risks inherent in Jalopy racing, he had not accepted the risk of the negligent construction of the ropes. However the defendant had successfully excluded liability (Lord Denning MR dissenting)
Lord Denning MR:
“The Act preserves the doctrine of volenti non fit injuria. It says in Section 2(5) that: “the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his the visitor”.No doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organisers.”
1. Volenti non fit injuria- the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted the visitor.
2. Contributory negligence-Damages may be reduced where the visitor fails to take reasonable care for their own safety.
3. Exclusion of liability-allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so.
4. The occupier employed a competent independent contractor