Occupiers Liability in the Commonwealth Caribbean

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TOPIC 4: 
OCCUPIER’S LIABILITY
Occupier’s liability forms part of the liability arising from the occupation of premises. It is therefore related to nuisance, Rylands v Fletcher, breach of statutory duty and basic negligence. Occupier’s liability covers liability for damage (usually personal injury) which occurs to entrants on to the premises of the defendant. In the Commonwealth Caribbean, Barbados and Jamaica have enacted statutes substantially similar to the English Occupiers Liability Act 1957. Barbados: Occupiers Liability Act, Cap. 208
Jamaica: Occupiers Liability Act 1969 (Vol. Xiii, Laws of Jamaica) All other jurisdictions apply the common law rules, but it has been said that the Occupiers Liability Acts could be regarded as simply applied common law negligence. Occupiers Liability or Negligence- New Zealand Ins. Co. v Prudential Assurance Ltd. [1976] Occupiers’ liability may extend to cover conduct which causes a continuing source of danger and thereby renders the premises unsafe. Revill v Newbury [1996]- liability for occupier’s shooting of intruder falls to be decided under general tort of negligence. Favre v Lucayan Country Clubs Ltd.

A. COMMON LAW
At common law, the duty owed by an occupier to an entrant onto his premises depended on the status of the entrant. The categories included:
(1) those who entered under a contract where the use of the premises was the main purpose of the contract- e.g. a hotel guest. (2) those who entered under a contract where the use of the premises was merely incidental to the main purpose of the contract-e.g. a UWI student in a lecture theatre. (3) an invitee, one who entered the premises in pursuance of a common financial interest with the occupier – e.g. a shopper in a supermarket. (4) a licensee, one who entered the premises with the express or implied permission of the occupier but on his own interests. It is a person to whom the occupier ‘voluntarily concedes (grants, allows) a benefit or privilege...without deriving a corresponding material advantage from [his] presence’ a person who has permission from the occupier to enter premises where, without that permission, his presence would be unlawful. E.g. a person collecting for a charity, a postman, a person who is invited by the occupier for some social or recreational purpose. (5) a trespasser- one who had no permission to enter the premises and had at least constructive notice of this – e.g. a burglar. The duties owed to these respective classes of entrant were respectively:
(1) a contractual warranty that the premises were as safe as reasonable care and skill could make them. (2) a warranty that the occupier had taken reasonable care to see that the premises were safe. (3) invitee – a duty to prevent damage from unusual danger of which the occupier knew or ought to have known. An ‘unusual danger’ is one which is ‘not usually found in carrying out the task of fulfilling the function which the invitee has in hand.’ Hoyte v Kirpalani’s Ltd (1972) 
The plaintiff slipped and fell whilst shopping in the defendants’ supermarket. It was alleged that the cause of the fall was a substance called ‘Sweep Clean,’ which the defendants admitted to having used on the floor earlier in the day. The trial judge held the defendants liable because the ‘Sweep Clean’ was an unusual danger, as evidenced by the plaintiff’s fall. Held: The COA overruled the trial judge on the ground that it was not proved that the ‘Sweep Clean’ was slippery, that it had rendered the premises unsafe or that it had caused the plaintiff to fall. It could not be said that the ‘Sweep Clean’ was an unusual danger merely because the plaintiff had fallen; the substance was not in the same category as oil, yogurt or cream, which are inherently slippery. Whether a danger is unusual or not depends not only on the character of the danger itself, but also on ‘the nature of the premises on which it is found and the range of experience with which the invitee may...
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