Occupiers’ liability in England and Wales
Occupiers’ liability is a legal concept that allows people who’ve sustained injuries while on a certain property to make claims for damages or compensation.
In England and Wales, the leading laws on the subject of occupiers’ liability are the Occupiers’ Liability Act 1957 (the OLA 1957), the Occupiers Liability Act 1984 (the OLA 1984), and the Defective Premises Act 1972 (the DPA).
Together, these pieces of legislation clearly outline the responsibility of landlords and tenants in preventing personal injuries on rental properties. In legal terms, this duty is called the ‘common duty of care.’
Typically, most landlords and tenants struggle, without the help of a lawyer, to tell where exactly the common duty of care falls when a dispute over occupiers’ liability arises. Either tenant, landlord, or both may be considered an occupier (ie capable of being liable for injuries), depending on the degree of control they exert over the premises.
As Roman Zrazhevskiy, Founder & CEO of MIRA Safety, puts it, ‘One of the most common issues that tenants face is having a clear idea of what responsibility they have for personal injuries on their premises. One major contributor to this challenge is the fact that most landlords don’t know either.’
As Ian Sells, CEO at Million Dollar Sellers, puts it, ‘In my experience, an unfortunately large number of people who invest in rental homes just don’t quite grasp all the issues they might have to deal with. Landlords invest in homes, thinking it’s going to be a passive gig and then they’re left scrambling for answers when personal injury claims pop up out of nowhere.’
When are landlords responsible for personal injuries on rental properties?
Here’s how to tell if a landlord may be liable for a personal injury that has occurred on their property:
1. The injury is to the tenant
Landlords and tenants both have legal obligations under a Tenancy agreement. For a landlord, these include a common duty of care to their tenants and other people who could reasonably be expected to be affected by any defects to the property. This would imply the tenant, the tenant’s household and/or visitors to the property or others who may enter or occupy the premises on a temporary basis.
2. The landlord had a duty to fix the defect
Not all repairs to a property are a landlord’s responsibility to undertake. Under the DPA, landlords have a duty to ensure that their property is constructed and maintained using materials of reasonable quality, and by reasonably skilled workers. Where there is a defect to the core structure of buildings constructed by the landlord, they will typically bear the liability for any resulting injuries.
3. The landlord was aware of the defect
For landlords to be held liable for personal injuries, tenants need to be able to show that:
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they had brought the damage to the property to the landlord’s notice, usually through a letter of complaint to the landlord, or
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that the landlord should have reasonably foreseen the existence of the defect
4. The landlord refused to fix the defect in a reasonable amount of time
Landlords are required to fix known defects within a reasonable amount of time. What constitutes a reasonable amount of time may differ from case to case; however, where a landlord cannot provide a reasonable explanation for a delay in fixing any damage to their property, they will likely be held liable for any resulting injuries.
5. The personal injury was a direct consequence of the failure to repair the defect
The mere fact that a tenant has been injured on a property with a known defect will not automatically amount to liability on the part of the landlord. An important condition for this to happen is that the defect must be shown to have been the cause of the injury.
6. The injury was serious and foreseeable
The severity of injuries is a major factor in whether or not personal injury claims are actionable. Additionally, claimants will need to show that the injury they suffered was a reasonably foreseeable consequence of an act of negligence.
When are tenants liable for personal injuries on rental properties?
Here’s how to tell whether the renter may be liable for personal injuries to visitors:
1. The injury is due to construction or damage caused by the tenant
This is particularly true when the personal injury occurs as a result of the tenant's negligence to repair any part of the property that falls within their responsibility. This might include fixtures and fittings along with any construction work commissioned by the tenant.
2. The tenant did not warn the injured person or take other reasonable steps to ensure their safety
Where tenants have any knowledge of a potential hazard or can be expected to have reasonably foreseen a potential hazard to a visitor or other entrant, they have a duty to provide notice to them.
They also have a duty to take any other reasonable steps to ensure the visitor or entrant’s safety, and where this is not done, the tenant may be liable for any injuries to them.
Steps to take when a personal injury occurs on a rental property
When personal injuries occur on rental properties, here are the steps to take:
1. Report the incident
Promptly report any accidents to relevant authorities, including the police. If you’re a tenant, you should also report the incident to your landlord.
2. Document everything
As soon as you’re able, you should try to document everything that you can. For tenants, be sure to keep copies of all communications made with your landlord, especially when you’ve reported incidents of damage to the property to them.
Speaking on the importance of documentation in building a solid case, Joshua Katz, Founder & CEO of Universal Tax Professionals, said, ‘Once the prospect of a landlord-tenant dispute arises, it’s time to document everything. Every email, every text message or phone call.’
3. Seek legal assistance
When it comes to legal disputes, it is always smart to consider hiring a lawyer. A lawyer will evaluate the facts of your complaint to establish whether it qualifies for a negligence claim.
If it does, they will then help you prepare and present your case. And if you win, your lawyer can also help to ensure that the judgment is enforced promptly, a crucial aspect of any lawsuit.
According to Mark Pierce, CEO of Wyoming Trust, ’Many people make the mistake of thinking that the road to justice ends once they’ve gotten a judgment in their favour. They couldn’t be more wrong. Half the time, the bigger battle lies in the enforcement of court orders against unwilling and often antagonistic parties.’
4. Consider settling out of court
While it's an excellent idea to hire a lawyer to guide you in your quest for fair compensation, you should also consider the possibility of negotiating with the other party and coming to an out-of-court settlement.
Sturgeon Christie, CEO at Second Skin Audio, says, ‘More and more people are realising that going to court may not be their sole option in a dispute. Out-of-court settlements are becoming increasingly common.’
Getting started
Are you facing a dispute over a personal injury on a rental property? Hopefully, this insight has helped to provide some clarity. However, it is always a good idea to speak with your lawyer for detailed legal advice that is tailored to the facts of your unique situation. To learn more about landlords’ and tenants’ obligations in relation to their properties, read Tenants' and owners' obligations.
