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Occupiers' liability

“Occupiers’ Liability” can be used as a general description of the type of claim that is made in the situation where a visitor is injured on your premises, and seeks damages from you as the “occupier” of the premises to compensate for the injuries suffered.

You are required by law to take reasonable care to prevent harm to persons attending your premises.  You owe your customers, and indeed any persons entering your premises, a certain duty of care.  If you are found by a court to have failed to meet an appropriate standard, you may be liable for any injuries suffered by your visitors.

By inviting members of the public on to your premises, you assume a responsibility for doing all things reasonable to ensure their safety.

It is therefore vital that you take appropriate steps to discharge your duty of care to ensure the safety of your customers.  Otherwise, you invite the risk of legal action in the unfortunate event that any of your customers suffers an injury while on your premises.

“Standard of care” - general principles

The general test which courts apply in respect of any injury that has occurred, is whether a “reasonable person” in the occupier’s position would have foreseen that the conduct in question involved a real risk of injury to the person injured.  If there was a “real risk”, the question is what would a reasonable person have done to prevent that risk.  

This question of what a “reasonable person” would have done, can take into account the magnitude of the risk (that is, the scale of the harm that might occur), the degree of probability of it occurring, the expense, difficulty and inconvenience of alleviating the risk, and any other conflicting responsibilities which the occupier may have.

At law, the question of what standard of care you need to meet will also take into account factors such as the age and sobriety of the visitors to your premises.  This will be relevant to the standard of care for your cellar door, as no doubt you will have from time to time customers who are under the influence of alcohol (even if only one or two glasses of wine), you may have elderly customers, and you may have children accompanying their parents.  

If a visitor to your premises is injured, and a court subsequently determines that a “reasonable person” in your circumstances would have done more to prevent that risk occurring, then you may be found liable for that injury.

Examples of occupiers' liability cases.

Risks associated with wineries
The winery environment presents particular risks and dangers, particularly for those who are unfamiliar with such environments. It is important to realise that the “premises” for which you are responsible not only include the cellar door area itself, but also the surrounding areas to which the public may gain access, including any gardens, car parks and the like.  

By way of example, areas that might present a risk could be:

  • unsafe flooring or spills in the cellar door area;
  • steep or poorly lit stairs (to cellars, for example);
  • easily accessible winery areas where working machinery could present a risk;
  • insufficient separation or distinction of areas intended for public access;
  • machinery operating in visitors’ car park;
  • old or poorly maintained playground equipment; and
  • vineyard areas, dams and the like.

Steps to take

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