27/07/2023
Occupiers’ Liability & Duty of Care is a legal principal that establishes duties owed by a person who is in control of a property, to other persons who are entrants to the property.
While this area of liability is more popularly associated with harm caused by “slip and fall” cases, it also covers incidents where harm is caused by the behaviour of third parties on an occupier’s property.
In other words, under occupiers’ liability considerations, occupiers are required to keep properties in a condition reasonably free of hazards, be they technical, mechanical, or resulting from the behaviour of others.
Therefore, under occupiers’ liability, occupiers must reasonably foresee security or criminal incidents and act in a prudent manner to mitigate their potential harm.
Lions Gate Risk Management Group can provide support to you by signposting reasonably foreseeable and correctable security and safety hazards by undertaking a security risk assessment.
We can design warning and deterrence signs tailored to your specific needs, which focus on trespass, present security, hazardous operations, risks of injury, rules governing behaviour for persons on the property. As an occupier you can confidently state that any injury caused to any party making an unauthorized incursion was in full knowledge of a particular hazard and established rules for behaviour. That is reasonable and prudent and provides you with additional insulation. It does not protect where negligence on the part of the occupier can be demonstrated through inaction to correct a hazard about which they had knowledge independent of whether the tenant or occupier was allowed to enter those premises.
Protection Through Perspective
Through our security risk assessment, guide you on the responsibilities you must consider from the perspective of the individuals or parties who could pursue a legal case against you due to your failure to fulfill your duty of care or take reasonable steps to ensure compliance and legal duty to ensure activities conducted on those premises are in alignment.
A Deeper Look at Occupier’s Liability Claims
“Proving an occupiers’ liability claim will require [the individual pursuing legal action against you] to prove the four central elements of a negligence claim. [They] will have to prove that the occupier owed [them] a duty of care, the occupier breached that duty of care by not correcting or informing [them] about a particular hazard, the breach of duty caused [their] injuries, and [their] injuries resulted in damages.
Premises liability cases can become complicated fairly quickly. Courts will generally look at several factors as they relate to a person’s injuries.
The foreseeability of danger will be examined, as well as how long that danger was allowed to exist and whether it was an unreasonable length of time. The conduct of the occupier will also be considered, as will the difficulty of correcting the hazard in question.
The bottom line in an occupiers’ liability case is that a person suffering an injury alone is not enough to constitute a liability claim. An occupier must have done something that violated their expected duty of care under BC law.”
Source: Warnett Hallen LLP Personal Injury Lawyers
Determining Occupier’s Breach of Duty of Care Owed
To determine whether an occupier breached their duty of care or took reasonable care, courts assess whether an occupier acted in a reasonable and prudent manner. In the context of reasonably foreseeable criminal and security incidents, or in other words, the property’s relevant threats, was the occupier prudent in their preparedness, deterrence, detection, response, and rescue?
To determine whether an occupier’s breach of their duty of care contributed to harm occurring, courts need to decide whether the occupier’s negligence actually caused, or contributed to, the harm in question. The “but for” test is applied, and the court assesses whether but for the occupier’s actions or inaction, the harm may have been reduced or prevented altogether.
It is worth mentioning that in cases of occupiers’ liability resulting from incidents perpetrated by third parties, occupiers are mostly joint tortfeasors. Therefore, the court will only assign liability to an occupier if the evidence demonstrates that the occupier of the premises played a substantial role in causing the harm in question.
Resources and References
Occupiers Liability Act [RSBC 1996] Chapter 337
McAllister Versus City of Calgary 2018 Publicly accessible legal assessment produced by Guild Yule LLP Barristers and Solicitors
Ruling Court of Queen’s Bench of Alberta, Filed Jun 19th, 2018 – The City of Calgary was held responsible for failing in their duty of care as an occupier and therefore liable for the plaintiff’s injuries.
Section 38 of the ruling majored on crime reduction through design “should have been designed, built, and maintained with sufficient lighting, video surveillance, staffing levels, and legal authority to deter and prevent crime, or allow its detection and an appropriate and timely response thereto”.
The ruling opens a significant door, exposing organizations, who fail in their duty as occupiers, to civil litigation.
QBOA Ruling McAllister Versus City of Calgary 2018
Federal – To act honestly and in good faith with a view to best interests; and exercise the care, diligence, and skill that a reasonably prudent person would exercise in comparable circumstances.
Provincial – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96337_01 An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
The provincial protection to litigation is stronger and therefore recommended to BC clients.
Occupiers’ duty of care
3 (1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
(2) The duty of care referred to in subsection (1) applies in relation to the
(a) condition of the premises,
(b) activities on the premises, or
(c) conduct of third parties on the premises.
(3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to
(a) create a danger with intent to do harm to the person or damage to the person’s property, or
(b) act with reckless disregard to the safety of the person or the integrity of the person’s property.
(3.1) A person who is trespassing on premises while committing, or with the intention of committing, a criminal act is deemed to have willingly assumed all risks and the occupier of those premises is subject only to the duty of care set out in subsection (3).
(3.2) A person who enters any of the categories of premises described in subsection (3.3) is deemed to have willingly assumed all risks and the occupier of those premises is subject only to the duty of care set out in subsection (3) if
(a) the person who enters is trespassing, or
(b) the entry is for the purpose of a recreational activity and
(i) the occupier receives no payment or other consideration for the entry or activity of the person, other than a payment or other consideration from a government or government agency or a non-profit recreational club or association, and
(ii) the occupier is not providing the person with living accommodation on those premises.
For more information and advice geared to supporting duty of care obligations, contact LGRMGinfo@ssrg.ca , 1.604.383.0020 or toll-free at 1.800.212.2026. Our expertise is your peace of mind.
