OCCUPIERS LIABILITY ORDINANCE

OCCUPIERS LIABILITY ORDINANCE

LAWS OF HONG KONG

OCCUPIERS LIABILITY ORDINANCE

CHAPTER 314

REVISED EDITION 1964

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER
HONG KONG





CHAPTER 314.

OCCUPIERS LIABILITY ORDINANCE.

ARRANGEMENT OF SECTIONS.

Section. Page.
1. Short title ... ... ... ... ... ... ... ... ... ... ... ... ... ... 2

LIABILITY IN TORT.

2..........Preliminary ....................... ... ... ... ... ... ... ... ... 2

3........................Extent of occupier's ordinary duty ... ... ... ... ... ... ... 2

4.................................Effect of contract on occupier's liability to third party ... ... ... 3

5...............................Landlord's liability in virtue of obligation to repair ... ... ... ... 4

LIABILITY IN CONTRACT.

6...................Implied term in contracts ... ... ... . ... ... ... ... 5

GENERAL.

7. Application to Crown........... ... ... ... ... ... ... ... ... ... 6





CHAPTER 314.

OCCUPIERS LIABILITY.

To amend the law as to the liability of occupiers and others for injury
or damage resulting to persons or goods lawfully on any land or
other property from dangers due to the state of the property or to
things done or omitted to be done there, and for purposes
connected therewith.

[1st April, 1960.]

1. This Ordinance may be cited as the Occupiers Liability
Ordinance.

LIABILITY IN TORT.

2. (1) The rules enacted by sections 3 and 4 shall have effect, in
place of the rules of the common law, to regulate the duty which an
occupier of premises owes to his visitors in respect of dangers due to
the state of the premises or to things done or omitted to be done on
them.

(2) The rules so enacted shall regulate the nature of the duty
imposed by law in consequence of a person's occupation or control of
premises and of any invitation or permission he gives (or is to be treated
as giving) to another to enter or use the premises. but they shall not
alter the rules of the common law as to the persons on whom a duty is
so imposed or to whom it is owed; and accordingly for the purpose of
the rules so enacted the persons who are to be treated as an occupier
and as his visitors are the same as the persons who would at common
law be treated as an occupier and as his invitees or licensees.

(3) The rules so enacted in relation to an occupier of premises and
his visitors shall also apply, in like manner and to the like extent as the
principles applicable at common law to an occupier of premises and his
invitees or licensees would apply, to regulate

(a)the obligations of a person occupying or having control over
any fixed or movable structure, including any vessel, vehicle
or aircraft; and

(b)the obligations of a person occupying or having control over
any premises or structure in respect of damage to property,
including the property of persons who are not themselves his
visitors.

3. (1) An occupier of premises owes the same duty, the 'common
duty of care', to all his visitors. except in so far as he is free to and does
extend, restrict. modify or exclude his duty to any visitor or visitors by
agreement or otherwise.





1 (2) The common duty of care is a duty to take such care as in all the
circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which he is
invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the
degree of care, and of want of care, which would ordinarily be looked for
in such a visitor, so that (for example) in proper cases

(a)an occupier must be prepared for children to be less careful
than adults; and

(b)an occupier may expect that a person, in the exercise of his
calling, will appreciate and guard against any special risks
ordinarily incident to it, so far as the occupier leaves him free
to do so.

(4) In determining whether the occupier of premises has discharged
the common duty of care to a visitor, regard is to be had to all the
circumstances, so that (for example)

(a)where damage is caused to a visitor by a danger of which he
had been warned by the occupier, the warning is not to be
treated without more as absolving the occupier from liability,
unless in all the circumstances it was enough to enable the
visitor to be reasonably safe; and

(b)where damage is caused to a visitor by a danger due to the
faulty execution of any work of construction, maintenance or
repair by an independent contractor employed by the
occupier, the occupier is not to be treated without more as
answerable for the danger if in all the circumstances he had
acted reasonably in entrusting the work to an independent
contractor and had taken such steps (if any) as he reasonably
ought in order to satisfy himself that the contractor was
competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any
obligation to a visitor in respect of risks willingly accepted as his by the
visitor (the question whether a risk was so accepted to be decided on
the same principles as in other cases in which one person owes a duty
of care to another).

(6) For the purposes of this section, persons who enter premises
for any purpose in the exercise of a right conferred by law are to be
treated as permitted by the occupier to be there for that purposes,
whether they in fact have his permission or not.

4. (1) Where an occupier of premises is bound by contract to permit
persons who are strangers to the contract to enter or use the premises,
the duty of care which he owes to them as his visitors cannot be
restricted or excluded by that contract, but (subject to any provision of
the contract to the contrary) shall





include the duty to perform his obligations under the contract, whether
undertaken for their protection or not, in so far as those obligations go
beyond the obligations otherwise involved in that duty.

(2) A contract shall not by virtue of this section have the effect,
unless it expressly so provides, of making an occupier who has taken all
reasonable care answerable to strangers to the contract for dangers due
to the faulty execution of any work of construction, maintenance or
repair or other like operation by persons other than himself, his servants
and persons acting under his direction and control.

(3) In this section 'stranger to the contract means a person not for
the time being entitled to the benefit of the contract as a party to it or as
the successor by assignment or otherwise of a party to it, and
accordingly includes a party to the contract who has ceased to be so
entitled.

(4) Where by the terms or conditions governing any tenancy
(including a statutory tenancy which does not in law amount to a
tenancy) either the landlord or the tenant is bound, though not by
contract to permit persons to enter or use premises of which he is the
occupier, this section shall apply as if the tenancy were a contract
between the landlord and the tenant.

(5) This section, in so far as it prevents the common duty of care
from being restricted or excluded, applies to contracts entered into and
tenancies created before the commencement of this Ordinance, as well
as to those entered into or created after its commencement; but, in so far
as it enlarges the duty owed by an occupier beyond the common duty
of care, it shall have effect only in relation to obligations which are.
undertaken after that commencement or which are renewed by
agreement (whether express or implied) after that commencement.

5. (1) Where premises are occupied by any person under a tenancy
which puts on the landlord an obligation to that person for the
maintenance or repair of the premises, the landlord shall owe to all
persons who or whose goods may from time to time be lawfully on the
premises the same duty, in respect of dangers arising from any default
by him in carrying out that obligation, as if he were an occupier of the
premises and those persons or their goods were there by his invitation
or permission (but without any contract).

(2) Where premises are occupied under a sub-tenancy, subsection
(1) shall apply to any landlord of the premises (whether the immediate or
a superior landlord) on whom an obligation to the occupier for the
maintenance or repair of the premises is put by the sub-tenancy, and for
that purpose any obligation to the occupier which the sub-tenancy puts
on a mesne landlord of the premises. or is treated by virtue of this
provision as putting on a





mesne landlord, shall be treated as put by it also on any landlord on
whom the mesne landlord's tenancy puts the like obligation towards the
mesne landlord.

(3) For the purposes of this section, where premises comprised in a
tenancy (whether occupied under that tenancy or under a sub-tenancy)
are put to a use not permitted by the tenancy, and the landlord of whom
they are held under the tenancy is not debarred by his acquiescence or
otherwise from objecting or from enforcing his objection, then no
persons or goods whose presence on the premises is due solely to that
use of the premises shall be deemed to be lawfully on the premises as
regards that landlord or any superior landlord of the premises, whether
or not they are lawfully there as regards an inferior landlord.

(4) For the purposes of this section, a landlord shall not be deemed
to have made default in carrying out any obligation to the occupier of
the premises unless his default is such as to be actionable at the suit of
the occupier or, in the case of a superior landlord whose actual
obligation is to an inferior landlord, his default in carrying out that
obligation is actionable at the suit of the inferior landlord.

(5) This section shall not put a landlord of premises under a greater
duty than the occupier to persons who or whose goods are lawfully on
the premises by reason only of the exercise of a right of way.

(6) Nothing in this section shall relieve a landlord of any duty
which he is under apart from this section.

(7) For the purposes of this section, obligations imposed by any
enactment in virtue of a tenancy shall be treated as imposed by the
tenancy, and 'tenancy' includes a statutory tenancy which does not in
law amount to a tenancy, and includes also any contract conferring a
right of occupation, and 'landlord' shall be construed accordingly.

(8) This section applies to tenancies created before the
commencement of this Ordinance, as well as to those created after its
commencement.

LIABILITY IN
CONTRACT.

6. (1) Where persons enter or use, or bring or send goods to, any
premises in exercise of a right conferred by contract with a person
occupying or having control of the premises, the duty he owes them in
respect of dangers due to the state of the premises or to things done or
omitted to be done on them, in so far as the duty depends on a term to
be implied in the contract by reason of its conferring that right, shall be
the common duty of care.

(2) Subsection (1) shall apply to fixed and movable structures as it
applies to premises.





(3) This section does not affect the obligations imposed on a
person by or by virtue of any contract for the hire of, or for the
carriage for reward of persons or goods in, any vehicle, vessel,
aircraft or other means of transport, or by or by virtue of any
contract of bailment.

(4) This section does not apply to contracts entered into
before the commencement of this Ordinance.

GENERAL.

7. This Ordinance shall bind the Crown, but as regards the
Crown's liability in tort shall not bind the Crown further than the
Crown is made liable in tort by the Crown Proceedings Ordinance
and that Ordinance and in particular section 4 of it shall apply
in relation to duties under sections 3 to 5 of this Ordinance as
statutory duties.
Originally 36 of 1959. Short title. Preliminary. 5 & 6 Eliz. 2, c. 31, s. 1. Extent of occupier's ordinary duty. 5 & 6 Eliz. 2, c. 31, s. 2. Effect of contract on occupier's liability to third party. 5 & 6 Eliz. 2, c. 31, s. 3. Landlord's liability in virtue of obligation to repair. 5 & 6 Eliz. 2, c. 31, s. 4. Implied term in contracts. 5 & 6 Eliz. 2, c. 31, s. 5. Application to Crown. 5 & 6 Eliz. 2, c. 31, s. 6. (Cap. 300.)

Originally 36 of 1959. Short title. Preliminary. 5 & 6 Eliz. 2, c. 31, s. 1. Extent of occupier's ordinary duty. 5 & 6 Eliz. 2, c. 31, s. 2. Effect of contract on occupier's liability to third party. 5 & 6 Eliz. 2, c. 31, s. 3. Landlord's liability in virtue of obligation to repair. 5 & 6 Eliz. 2, c. 31, s. 4. Implied term in contracts. 5 & 6 Eliz. 2, c. 31, s. 5. Application to Crown. 5 & 6 Eliz. 2, c. 31, s. 6. (Cap. 300.)

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