In relation to “housekeeping”, it is important for underwriters and advisers to have a basic understanding of the current legal framework in relation to Occupiers’ Liability (also known as Premises Liability). Traditionally, this is a branch of the law of tort and relates to the liability for physical injuries sustained by persons (third parties), other than the occupier or owner, caused by the dangerous condition of the premises or land. The law of tort and relevant legislation both deal with the classes of third parties entering the premises to whom the insured as occupier/owner owes a duty of care in relation to the premises. Generally, the degree of the duty will be higher or lower depending on whether the third party is (for example) an invitee or a licensee.
A variety of factors will usually be taken into account in determining whether an occupier has breached this duty of care, such as:
- the gravity and likelihood of probable injury;
- the circumstances of the entry into the premises;
- the nature of the premises;
- the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
- the age of the person entering the premises; thus children will be given special consideration;
- the ability of the person entering the premises to appreciate the danger; and
- the burden on the occupier of eliminating the danger or of protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
A defence of contributory negligence on the part of the third party may still apply.
It is important to assess the specific industry in which the insured is involved (including the classes of visitors etc) to determine its level of risk exposure for which insurance is required. For further details, please refer to the Industry Specific section.