Chapter 5. Occupiers’ Liability

• Pages: 152-167

In Barbados and Jamaica, the liability of occupiers of premises to lawful visi-

tors is governed by the respective Occupiers’ Liability Acts (OLAs).1 In other

Commonwealth Caribbean jurisdictions, such as The Bahamas and Trinidad and

Tobago, the liability of occupiers is governed by common law principles.

THE OCCUPIERS’ LIABILITY ACTS

Both the Barbadian and the Jamaican statutes are closely modelled on the English

OLA 1957. Under the Acts, ‘an occupier of premises owes the same duty, the common

duty of care, to all his lawful visitors, except in so far as he is fre e to and does extend,

restrict, modify, or exclude his duty to any visitor by agreement or otherwise’: s4(1)

of the OLA (Barbados), Cap 208; s3(1) of the OLA (Jamaica).

It has been suggested that the differences between an action in negligence and

one under the Acts are minimal2 and, in some cases, claimants have succeeded in

ordinary negligence where the facts appeared to fal l more naturally within the Acts.3

The duty under the Acts is a duty to take such care as in all the circumstances

of the case is reasonable to see that the visitor will be reasonably safe in using the

premises for the purposes for which he is invited or permitted by the occupier to

be there: s4(2) of the OLA (Barbados); s3(2) of the OLA (Jamaica). Thus, there was

a breach of the duty where, for example, a slippery substance left on a shop oor

caused a customer to slip and fall, there being no proper system for removing spill-

ages and no warning notices;4 and where the management of a sports club failed to

prevent spectators from sitting on a dangerous wall, with the result that a vi sitor fell

off and sustained injur ies from which he died.5

The occ upier

The occupier may be dened as a person having possession or control of the prem-

ises. ‘The foundation of occupiers’ liability is occupational control, that is to say,

control associated with and arising from presence in and use of or activity in the

premises’.6 The owner of the property, if in possession, will be deemed to be the

1 See also Occupiers’ and Hig hway Authorities’ Liabi lity Act 1978 (Bermuda).

2 Jones, Textbook on Torts, 6th edn, 1998, London: Blackstone, p 265. It is also signicant that t he same

test for remoteness of damage applie s under the Acts as applies in common law negligence: Jolle y

v Sutton London Borough Council [1998] 3 All ER 559; Shtern v Villa Mora Cottages Ltd (2012) Court of

Appeal, Jamaica, Civ App No 126 of 2009, per Morrison JA.

3 S ee, e.g., Ward v Tesco Stores Ltd [1976] 1 All ER 219.

4 Gibbs v Cave Shepherd and C o Ltd (1998) High Court, Barbados, No 35 of 1989 (unreported) [Carilaw

BB 1998 HC 25]. See also Ward v Tesco Stores Ltd [1976] 1 All ER 219; Victoria Mutual Building Society v

Berry (2008) Court of Appeal, Jamaica, Civ App No 54 of 2007.

5 Morris v National Sports Club (1993) Court of Appeal, Bermuda, Civ App No 25 of 1992 (unreporte d).

6 Wheat v Lacon and Co Ltd [1966] AC 552, at 589, per Lord Pearson. See Smith v UGI Group Ltd ( 2010)

Supreme Court, Jamaica, No CL 1997/S-298.

CHAPTER 5

OCCUPIERS’ LIABILITY

DOI: 10.4324/9781 35106 5108 -5

10.4324/97813 5106 5108 -5

Chapter 5: Occupiers’ Liability 153

Chapter 5: Occupiers’ Liability

occupier; but if he is out of possession, for example, where the property is let to a

tenant, then the tenant will be the occupier for the purposes of the statutes, not the

owner. Thus, in Walrond v National Assistance Board,7 the Barbados Court of Appeal

held that the defendant, a statutory body which provided housing for needy per-

sons, was not liable for injury caused to a visitor by a defective staircase in one of

its houses, which had been occupied by a lady for 19 years prior to the accident. As

Peter Williams JA explained:

There was no evidence that [the Board] exercise d any control by, for example, car-

rying out inspe ctions of and repair s to the property. In the circu mstances, it is

difcult to appreciate how the Boa rd had a sufcient degree of control over the

premises to place it under a duty of care towards t he appellant. Ms Alley ne had

lived in the house for 19 years prior to the date of the acc ident; she was the obvi-

ous person in physical occupation a nd control of the premises but she was not a

party to the procee dings. It is therefore unnecessar y to make any nding as to her

responsibility i n the matter. Two persons may be occupiers of the same premi ses

at the same time and bot h under different duties of care towards lawful v isitors, as

explained in W heat v Lacon.8 However, the evidence in this cas e does not support

any nding of occupation on the pa rt of the National Assista nce Board. It follows

that there was no correspond ing duty to take care to see that the premises were

reasonably safe for persons co ming on to them.

It is possible for there to be more than one ‘occupier’ at the same time, as for example

where an occupier engages a contractor to do repairs or building work,9 in which

case the contractor may be a co-occupier as well as a visitor.

Premises

The term ‘premises’ is dened very widely to include not only land and buildings

thereon, but also any xed or movable structure, including any vessel, vehicle or

aircraft: s2(3) of the OLA ( Jamaica); ss2 and 3(3) of the OLA (Barbados).10

Visitors

The common duty of care is owed to all visitors to the premises, and visitors are

those persons who would, at common law, have been treated as invitees or licensees.

Thus, in effect, any person who enters lawfully, that is, not as a trespasser, will be a

7 (2011) Court of Appeal, Barbados, Civ App No 16 of 2008.

8 [1966] AC 552, n 6, above.

9 As in Fisher v Atkinson (2000) Supreme Court, Jamaica, No CL 1993/F-202, where the work site

on college premises was f enced around by the contractor, and the college’s representatives gave

direction s concerning the c onduct of the work, so that the college and t he contractor were both

‘occupiers’ for the purposes of the Act. I n such circumstance s, each occupier owes independently

of the other the statutor y duty of care under the Acts: Rose Hall De velopment Ltd v Robinson (1984) 21

JLR 76, at 92, per Campbell JA; Hanna v University of the West Indies (2004) Supreme Court, Jamaica,

No CL 2000/H-104, per Daye J.

10 In Watson v Arawak Cem ent Co Ltd (1998) High Court, Barbados, No 958 of 1990, Chase J held that

the owners of a ship were liable a s occupiers to a visitor who was inju red when he fell from an

unlit walkway in side the ship.