A. What is occupiers’ liability?
Occupiers’ liability is a branch of tort law concerning the legal responsibility of those who exercise a sufficient degree of control over premises towards those who enter them. The law imposes a positive “common duty of care” on occupiers toward all lawful visitors.
The law does not require premises to be risk-free. Rather, this duty requires the occupier to take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there. Notably, this responsibility extends to protecting the property of visitors, as well as their personal safety.
The term “premises” is broad. It is not limited to land or buildings. It can also include fixed or movable structures, and may extend to things like a boat, vehicle, aircraft, scaffold, toilet, roof, or other structure that a visitor is invited or permitted to use.
However, occupier’s liability is not the law for every accident that happens on premises. A useful distinction is:
- Occupancy duty: If the injury was caused by the static state or condition of the premises, such as wet floors, broken steps, poor lighting, unsafe common areas, missing covers, or inadequate escape arrangements, the Occupiers Liability Ordinance (Cap. 314) is likely to apply.
- Activity duty: If the injury was really caused by the way an activity was carried out, the case may instead fall under the ordinary law of negligence. For example, where an employee causes injury to another person whilst moving goods, operating machinery, or carrying out cleaning or maintenance work.
That said, the law recognises that an occupier may still be liable under occupiers’ liability if the injury arises from a failure to properly control or supervise activities conducted by third parties that create a foreseeable risk to visitors.
