Accidents that are not your fault – Occupier’s liability claims
Chris Brunt is a Gibraltar personal injury lawyer, a barrister and acting solicitor of the Supreme Court of Gibraltar who will consider all personal injury claims on a No Win No Fee basis. Contact me for a free consultation to see if I can help you win the compensation you are entitled to. Use the contact form here and I will get back to you to discuss your claim.
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In this post, I will discuss Occupier’s Liability Claims or claims which can be brought in Gibraltar against the persons in control of the shop or building in which a personal injury occurs.
If you have had an accident in Gibraltar and have suffered a personal injury perhaps in a shop, office, or on someone else’s premises, (or perhaps in the street), you may be entitled to claim compensation or damages for your injury from the owner or person in control of the premises (practically speaking compensation from their insurers).
As a Gibraltar personal injury lawyer, I am able to offer advice on the strength of any personal injury claim with a free consultation. I also consider all personal injury claims on a No Win No Fee basis and pursue the most favourable outcome possible for my clients to ensure the best possible compensation payable to those who have had an accident and suffered an injury. If you have had an accident and have suffered an injury please contact me to see how I can be of assistance. I offer all clients who have had an accident a free 30-minute consultation in order to advise them of the merits of their personal injury claim. I will discuss a way forward with them, and if there are good prospects of success in their claim I will offer clients a conditional fee agreement also known as a ‘No Win No Fee’ to legally represent them in their claim for damages or compensation.
In this post, I am dealing with accidents causing injuries which were suffered on someone else’s property. If you have an accident in such circumstances which causes you personal injury you may be able to bring a claim against the occupier of the premises. This is known as an Occupier’s Liability claim.
So, if you have had an accident, perhaps a trip or slip on someone else’s premises, in fact, no matter how you were injured, you should seek legal advice as soon as possible this is because you could be entitled to compensation otherwise known as damages for your injury as well as all your associated financial losses and there are strict time limits for doing so. (See my post here on how to bring a personal injury claim in Gibraltar and the time limits for doing so).
An occupier of the building or land in which an injury occurs would owe a duty of care towards people who are lawfully on or in his premises (they are called visitors).
The duty of care an occupier owes its visitors is to ensure that they are kept safe as is reasonably possible in the circumstances.
Historically, the protection afforded to persons who visited someone else’s premises was provided by the common law. The common law of England which had developed the concept of the duty of care that an occupier of premises owed towards visitors also became the common law of Gibraltar. See section 2 of Gibraltar’s English Law (Application) Act. Later both jurisdictions codified the common law into legislation, with respect to Gibraltar, Occupier’s Liability was legislated for by the Contract and Tort Act 1960.
Let’s look at the relevant legislation concerned and which is contained in Part IX of Gibraltar’s Contract and Tort Act and which deals with Occupier’s Liability.
Section 18. of the Contract and Tort Act 1960 states:
- The rules enacted by sections 19 and 20 shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.
The codification of Gibraltar common law into statute was expressed in section 18(2)
- “The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed, and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same as the persons who would at common law be treated as an occupier and as his invitees or licensees.”
And in section 3 of the Contract and Tort Act goes on to add
(3) “The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate–
- the obligations of a person occupying or having control over any fixed or movable structure, including any vessel, vehicle or aircraft; and……
Here Gibraltar’s Contract and Tort Act confirms that the prior common law rules apply as between an occupier of premises and those permitted to be on the occupier’s premises. Also, premises are comprehensively defined to cover most situations in which people will find themselves and where they can expect to be kept safe, as they are defined as any fixed (property such as a shop, office, or building site for instance) or movable (a caravan for instance). Note premises also includes any vehicle or aircraft.
However, not only are persons protected by law, but an occupier is also under a duty to ensure that a person’s property is reasonably protected whilst on their premises.
(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors.”
“Extent of occupier’s ordinary duty.“
By section 19 of the Contract and Tort Act, the extent of the Occupier’s duty is set out as follows
19. (1) “An occupier of premises owes the same duty, the “common duty of care,” to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
(2) The common duty of care 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.”
It is worth noting that an occupier is not necessarily the owner of the property, it is the person who has control of them. For example, the landlord of retail premises might have leased the premises to a business which operates a shop from them and who has control of the premises for the term of the lease. A visitor is a person who has express or implied permission to be on the occupier’s premises.
The statute makes provision for an occupier to be able to exclude or modify his duty by agreement or otherwise should they choose to. An exclusion of liability attempt by an occupier would normally take the form of an exclusion of liability notice. Arguably, for such an exclusion notice to be valid, it would have to be reasonable and not unfair in the circumstances. However, that said exclusion of liability notices are rare in Gibraltar, probably because it would be extremely difficult to demonstrate that it would be reasonable in the circumstances to allow an occupier to restrict liability for personal injury caused by any breaches of their statutory duty to keep visitors reasonably safe whilst on their premises
The statute goes on to state in subsection 3 of section 19
(3) “The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases–
(a) an occupier must be prepared for children to be less careful than adults; and
- an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
Here the legislation is saying that the occupier has to consider when making the premises reasonably safe, that in order to comply with their duties they would need to take into account at (a) that with respect to inexperienced children more will be reasonably required of an occupier in order to comply with their duty of care. At the other end of the scale in (b), with regard to experienced professionals visiting their premises to undertake work (for example an electrician), less might be required to protect the electrician in the premises from injury due to say an electrical fault, as the “person in the exercise of his calling” could reasonably be expected to be aware of the relevant risks and take steps to protect themselves.
When someone has an accident on someone else’s premises and makes a claim for personal injury it will be a matter of fact and degree as to whether or not an occupier has complied with his duty of care to keep their visitors safe as is reasonable in all the circumstances.
Subsection 4 of Gibraltar’s Contract and Tort Act enlarges on warnings made to members of the public. Here the statute establishes that a warning (Normally a warning sign) is not enough to automatically establish that an occupier has fulfilled their duty of care and therefore absolve an occupier of responsibility when a member of the public has an accident and is injured on the occupier’s premises.
(4) “In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)-
- where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and”
Subsection (b) below, deals with subcontractors and relieves the occupier of responsibility for accidents and injury on his premises (caused by the subcontractor’s acts or omissions), that is if the occupier can show that they had taken all reasonable steps, with respect to the contractor to ensure the contractor was not only competent but that the occupier had taken steps to satisfy themselves that the work of the contractor, acts or omissions and which caused injury, was undertaken properly. Therefore, if an occupier establishes that they have not breached their duty of care when a visitor is injured on their premises as a result of a contractor working on their premises by undertaking due diligence, it is submitted that the injured party could bring their claim for personal injury directly against the contractor, though not as a breach of statutory duty, but as a negligence claim.
- “where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”
Subsection 5 of section 19 of the Contract and Tort Act below is self-explanatory and has never in all my experience in Gibraltar as a personal injury lawyer acting for members of the public injured on someone’s premises, surfaced as a possible defence to the claim. This is because practically speaking members of the public, or visitors, do not willingly accept risks to their health when entering someone’s premises.
(5) “The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)”.
Finally, subsection 6 of section 19 of the Contract and Tort Act deals expands the definition of “Visitor”. You will have appreciated that an occupier of premises only owes a duty of care to ensure that Visitors are safe. But to recap, who are Visitors? These are members of the public who have express permission or implied permission to be on the premises. From a practical perspective, and by way of example, it is submitted that all customers to a shop or workplace or public office or building have at least implied permission to visit to enter the premises. Subsection 6 below deals with those who are allowed access to premises on a right conferred by law, this could mean officials who enter the premises by reason of a contract or underlease (such as managing agents entering premises for any purposes as stipulated in the underlease) whether the lessee likes it or not and has not expressly given permission. Or perhaps Police officers entering private premises on the basis of a lawfully issued search warrant.
(6) “For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.”
Summary
By section 19(2) of the Contract and Tort Act- The common duty of care 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.”
This will mean that every time you enter a shop or building controlled by someone else you can expect that those who have control of the premises will take such care as is reasonable to ensure your safety whether it is cleaning up spilt liquids promptly to ensure you do not slip to providing adequate handrails on steps or stairs.
If you have had an accident, perhaps in a shop or office or a building controlled by someone else, or in the street, I would be pleased to review your case with a free 30-minute consultation and where I would advise you on the merits and strengths of your claim. I look to offer all clients with good prospects of success full legal representation on a ‘No Win No Fee’ basis
No Win No Fee
Chris is a personal injury barrister and acting solicitor of the Supreme Court of Gibraltar who specialises in personal injury law and representing clients who have been injured by someone else’s negligence or breach of statutory duty. Chris considers all cases of personal injury cases on a no win no fee basis and offers clients a conditional fee agreement where he is able.
Contact Chris for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, on 200 73900 to discuss your personal injury claim and to see how he can help you win the compensation you are entitled to
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site: Chris Brunt Barrister – Gibraltar Personal Injury Lawyer (personalinjurylawyergibraltar.com
