This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai.
Have you ever wondered that if there is any kind of liability of a person who is inviting someone to his premises?. Are there some precautions that a person is required to take if children are entering his/her premises?
The tort has over the years taken on different forms depending on the circumstances of the incident. In general, tort liability is associated with monetary awards, but some forms of liability can lead to other remedies such as restraining order or injunction. The responsibility of a person for possession of land and building to take reasonable care about their safe condition arises towards a person outside the premises and towards a person entering the premises.
While his duty towards the person outside his premises arises if that person makes improper use of his property. Whereas, responsibility towards a person entering the premises arises when the latter invites or grants permission to the person to enter the premise.
According to the Occupiers Liability Act, 1957, is an act that was enacted in England. Earlier this act created a lot of confusion hence later on it was simplified. So according to the act liability of a person arises for 3 people. Firstly, towards a person residing outside the premises. Secondly, duty arising towards a trespasser or, a person entering the premises, and in the third case, the obligation rising towards children. A claim under Occupier’s Liability Act works similarly to the claim for negligence. A breach of duty and duty of care has to be shown alongside the damages resulting from such a breach of duty.
The main objective of the act is it deals with the liability or obligations towards lawful visitors, trespassers, and children.
Who is an Occupier?
An occupier is a person who has complete control over his premises. He need not be the physical owner. There is no test to determine if a person is an occupier or not. Thus, only the facts of the case will determine if the person is an occupier or not
Duty Towards Lawful Visitor
The position has always been governed by Common Law rules. Once the Occupiers’ Liability Act, 1957 was passed. There are two categories of visitors:
1. The invitees-The visitor was known as Invitee if the visitor and the occupier of the premises had a common interest in the visit of the visitor.
E.g.-When a person enters a shop as a buyer then it doesn’t matter if he bought things or not.
2. Licensees-When the visitor has no interest in the business of the owner and enters the premises with the consent of the owner of the premises then he was known as Licensee.
E.g. – Any guest invited to the party.
Types of invitees-
Public invitee: these are the type of invitees that enter the premises with a similar objective with which the other public enters the premises that means that these invitees enter the premises for the same reason the premises is open to the public.
Business Invitee: This includes the people who enter or remain on the premises for the purpose which is related to the business of the occupier.
Duty Towards Invitee
The occupier was supposed to take the most amount of care towards an Invitee. The owner of the premises has to ensure that the Invitee is safe from any dangers on the property.
The occupier’s liability act mentions that the Invitee is liable only for the loss caused by an unusual danger, in this respect, he is not only liable for the danger which he is aware of but also for the danger for which he is unaware.
It must be noted, that the occupier is required to take reasonable care to prevent any damage to the invitees. Reasonableness varies from one case to another, depending upon the facts and circumstances of each case. Thus, a person is required to take reasonable care which a well-judged person would have taken under similar circumstances.
Duty Towards a Licensee
A licensee is a person who enters the premises with some work related to the business of the occupier directly or indirectly with consent.
Under the Common Law, the occupier had the duty to provide the details about any latent defect, which he was aware of. However, the occupier was not liable if the danger was not known to him. The owner was also not liable for the danger which was obvious and that the licensee appreciated the same. The owner of premises owed a duty that he would not injure the licensee intentionally or maliciously. Reasonable notice was to be given to the Licensee if new danger was created.
Duty Towards Children
Occupier’s Liability Act, 1957 mentions that the owner of the premises is expected to be much more careful when children enter the premises.it is expected that he knows that he has to be more careful when children are entering the premises. He has to protect the children even from the dangers in which adults need no protection this is because children do not react to a dangerous situation in a similar way in which adults react hence they need more protection
Liability of Landlord
Generally, whenever a building is given on rent, then it is the tenant who is liable to the visitors for any damage caused to them in the premises:
Common Areas: The landlord is liable for the common areas which are shared by all tenants like stairways, hallways, etc.
Latent Defects: Any defect which the landlord was previously aware of and despite that defect agreed to the tenancy then any harm caused because of that defect will make the landlord liable.
Contractual obligation to repair: Generally, the landlord is not responsible to make repairs in the building. However, if he had agreed with the tenant in writing an undertaking to repair the building whenever necessary. Then it will be the landlord who will be responsible if any injury is caused to the visitors because of the negligence in repair.
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