Occupier is a person who has sufficient degree of control over premises to put him under a duty of care towards those who came lawfully upon the premises.
Per : Lord Denning in Wheat V.E. Lacon & Co. - - The foundation of occupier’s liability is on occupational control not exclusive possession.
a. By express invitation or permission.
b. By authority of law
c. By implied permission. This is question of law and the visitor must proof it.
Common Duty of Care
Section 2(2) of Occupiers’ Liability Act provides that the common duty of care only applies where the visitor is using the premises for the purposes for which he is invited or permitted to be there.
The occupier on the other hand under a duty to take such care in all circumstance of the case is reasonable to see that the visitor will reasonably safe in using the premises for the purpose he is invited. Please refer to the case of Wheat v Lacon & Co Ltd.
The Act gives example of circumstances where decree of care is required.
Section 2(3)(a) of Occupiers’ Liability Act - - an occupier must be prepared for children to be less careful than adults.
Section 2(3)(b) Occupiers’ Liability Act - - an occupier may expect that a person, in the exercise of his calling will appreciate and guard against special risks ordinary incident to it, so far as the occupier leaves him free to do so.
Bates v Parker - - Householder employs an independent contractor do work, to repair or clean. The contractor must satisfy himself as to the safety on which he is to work.
Section 2(4)(a) provides that the warning by the occupier regarding the danger must be sufficient in order for him to escape liability.
2. Volenti Non Fit Injuria
Section 2(5) of Occupiers’ Liability Act stated that this defence is available to the occupier, if visitor willing takes the risk.
3. Independent Contractor
Section 2(4)(b) provides that if damage caused to a visitor due to the faulty execution of any work of construction maintenance, repair by an independent contractor employed by him, the occupier is not liable if he had acted reasonably in entrusting the work to the contractor and he is satisfied that the contractor is complete and work properly done.
4. Contributory Negligent
If the visitor is at the same time is careless of his own duty and the occupier breach his common duty the damage will be apportion.
5. Exclusion of Occupier’s Duty
Section 2(1) - - An occupier may exclude or modify his liability to a visitor by express terms in a contract with his visitor or otherwise.
Occupiers’ Liability Act - - If the occupier brings the condition of notice to the visitors attention the occupier can escape liability.
See further OLA.