2. Workers and skilled visitors
Section 3(3)(b) of the Occupiers Liability Ordinance (Cap. 314) recognises that a person entering in the course of his work or calling may be expected to appreciate and guard against special risks ordinarily incidental to that work, so far as the occupier leaves them free to do so.
A critical boundary in the law is the distinction between risks that are “ordinarily incident” to a profession and those that are “ordinary risks” inherent to the premises themselves.
An occupier is generally not liable if a specialist is injured by a hazard he was hired to address or should have anticipated. For example, a window cleaner who falls because he relied on an insecure window sash as a handhold typically cannot sue the occupier, as assessing handholds is a professional responsibility.
However, the professional’s expertise does not absolve the occupier of liability for dangers unrelated to the specialized work. If a window cleaner is injured because a defective internal staircase collapses while he is walking to his work area, the occupier remains liable, as a sound staircase is a matter of ordinary premises safety rather than a special trade risk.
The occupier can only rely on this defence so far as the occupier leaves the professional free to do so. If an occupier interferes with the work, provides unsuitable equipment, or imposes conditions that prevent the professional from taking necessary precautions, the occupier may still be liable in general negligence.
Further, the occupier has a positive duty to warn independent contractors of unusual risks on the premises that the contractor might not otherwise know about. For example, a householder was held partially to blame for a specialist falling from a landing that was unguarded, as the householder admitted the workers to a known unsafe environment unrelated to their technical task.
