What Are the Elements of Occupiers’ Liability?
An occupiers’ liability claim is your principal legal recourse if you suffer injury on premises occupied by someone else. However, just because you are injured on someone else’s property does not mean you are automatically entitled to compensation.
You will need to present evidence of negligence on the part of the occupier(s) to recover compensation for your injuries and damages. A knowledgeable lawyer can apply the elements of occupiers’ liability to your case and pursue a favourable recovery on your behalf.
What Is an Occupier?
The Occupiers Liability Act is the legislation in British Columbia that governs the legal responsibilities that occupiers of premises hold toward lawful visitors. Section 1 of the Occupiers Liability Act defines an occupier as a person or party who:
- “is in physical possession of premises”
- “has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises”
A premises may have more than one occupier (as in a tenancy agreement between a landlord and a tenant or a business that rents space from the owner of a commercial property). The liable occupier or occupiers must be identified for an occupiers’ liability claim to proceed.
Occupiers’ Liability Elements
Establishing the liability of an occupier for an incident resulting in injury on the premises can be difficult. Generally, it is in your best interest to have a lawyer well-versed in the elements of occupiers’ liability to investigate and collect evidence on your behalf.
Broadly speaking, the elements in an occupiers’ liability claim are:
1. Duty of Care
First and foremost, it must be shown that the occupier owed you a duty of care when you were on the premises. A full description of the duty of care can be found in Section 3 of the Occupiers Liability Act.
In layman’s terms, occupiers are responsible for ensuring that:
- Conditions on the premises are reasonably safe for visitors.
- Activities on the premises are conducted in a reasonably safe manner.
- Third parties on the premises conduct themselves in a way that does not present a foreseeable risk of harm to visitors.
Occupiers owe a limited duty of care when it comes to trespassers and individuals who willingly assume risks upon entering the premises. As it applies to these individuals, the duties of an occupier are limited to:
- Not creating a hazard intended to cause harm to the person.
- Not acting with reckless disregard toward the individual’s safety.
This more limited duty of care applies to the occupiers of certain rural premises, premises primarily used for agriculture, marked recreation trails, and utility rights of way. The duty of care is also modified for limited liability entities responsible for resource roads (see Occupiers Liability Act Section 3.1).
Ultimately, an occupiers’ liability lawyer can evaluate your claim to determine who may be responsible for your injuries and fight to hold the occupier(s) accountable.
A breach is a violation of the duty of care owed to a particular party. Generally, the duty of care is breached through negligence rather than intentional wrongdoing (although allegations of intentional harm and reckless disregard for another’s safety are not unheard of in occupiers’ liability claims).
Many different actions may constitute a breach of the duty of care on the part of an occupier. These include:
- Failure to clean, maintain, and inspect the premises
- Failure to warn visitors of potential hazards
- Negligent supervision of third parties on the premises
Evidence of negligence on the part of an occupier or occupiers can take many different forms. Photos of dangers on the premises, eyewitness testimony, an accident report, and more can all support claims that an occupier was negligent.
The evidence must also show a direct connection between the occupier’s negligence and the injuries you sustained in an incident on the premises. Causation is typically established through medical records and testimony from expert witnesses.
Occupiers and insurance companies alike often dispute claims that a visitor’s injuries were caused by dangerous conditions and negligent acts. They may try to argue that your injuries occurred through your own carelessness, or the incident was caused by factors outside the occupier’s control.
An experienced lawyer can build a strong occupiers’ liability claim on your behalf. If more than one occupier is liable for your injuries, your lawyer can determine the degree of fault and seek to recover maximum damages from all parties.
Finally, you need to prove that you suffered damages as a result of injuries sustained due to an incident on the premises. You may be entitled to compensation for the following losses:
- Medical expenses to date
- Cost of future medical care
- Lost wages
- Loss of earning capacity
- Expenses related to household services, at-home medical care, assistive devices, medical-related travel, etc.
- Pain and suffering
Accurately accounting for all damages in an occupiers’ liability claim is difficult. The importance of entrusting your case to a qualified lawyer cannot be overstated.
Get Help with Your Occupiers’ Liability Claim
Each of the elements of occupiers’ liability must be satisfied for your claim to succeed. Victims who suffer injuries on another’s premises are at a disadvantage until they seek legal counsel.
Klein Lawyers handles claims involving trip and falls and other incidents on unsafe premises. Our team has extensive, detailed knowledge concerning occupiers’ liability elements. We seek to hold negligent occupiers accountable for the losses you suffer.