E. What is the standard of care?
Under the Occupiers Liability Ordinance (Cap. 314), the occupier must 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 purpose for which the visitor is invited or permitted to be there.
The law does not require an occupier to guarantee absolute safety. The question is whether the occupier acted reasonably in the circumstances. What is reasonable depends on the facts of the particular case, including the nature and condition of the premises, the nature and seriousness of the danger, the likelihood of injury, the obviousness of the risk, the purpose of the visit, the type of visitor, and what the occupier knew or ought reasonably to have known. For instance, an occupier must take greater precautions for a visitor with a known disability, such as blindness, than for a sighted person.
The court will also consider how easy and costly it would have been to take precautions, and what steps could reasonably have been taken to avoid or reduce the risk. An occupier of a private flat, for example, will not necessarily be expected to take the same precautions as the operator of a shopping centre, restaurant, hotel, or construction site.
Depending on the case, reasonable care may require inspection, cleaning, repair, maintenance, lighting, barriers, housekeeping systems, or suitable warnings. The duty extends not only to dangers created by positive acts, but also to dangers that arise because the occupier failed to deal with a hazard.
If the occupier knows of a danger that is not obvious to the visitor, then, even if the danger was not created by the occupier, a warning may be required. But a warning is not automatically enough: it must, in all the circumstances, be sufficient to make the visitor reasonably safe.
Different standards are applied to children, workers and skilled visitors, and trespassers.
