By George Coucounis
THE occupier of an immovable property has a legal and social duty to act diligently to protect a person who lawfully enters his property from suffering any loss or damage due to a risk that could have been reasonably anticipated.
There are numerous risks involved nowadays taking into consideration the large range of human activities offered. For this reason, the occupier of an immovable property, i.e. the owner or the tenant or any other person lawfully possessing or using it, who also has the right or power to invite or allow the entrance of a third person therein, is under an obligation to minimize the risks and to keep the place reasonably safe for his visitors.
The liability of the occupier is based on the fact that he is the one who is in possession of the property and the one who exercises the control and looks after it. Such an immovable property can be a house, shop, apartment, supermarket, club, school, hotel, sports centres, buildings under construction etc.
The issue of the occupier’s liability is regulated by article 51(2)(b) of the Civil Wrongs Law, Cap.148, which refers to negligence as: (a) performing some act which in the circumstances a reasonable prudent person would not do or failing to do some act which in the circumstances such a person would do, or (b) failing to use such skill or take such care in the exercise of a profession, trade or occupation as a reasonable prudent person qualified to exercise such profession, trade or occupation would in the circumstances use or take, and thereby causing damage.
Additionally, the law provides that compensation shall only be recovered by a person to whom the person guilty of negligence owed a duty, in the circumstances, not to be negligent. The occupier of an immovable property shall owe such a duty to all persons who are, and to the owner of any property which is, lawfully in or upon or so near to such immovable property as in the usual course of things to be affected by the negligence.
The issue of the occupier’s liability and his duty towards others was examined by the District Court of Larnaca in a judgment issued on 12.7.2018 concerning the injury of the plaintiff, who fell in a hole on the roof of a building when he went there to install an antenna.
The Court accepted that both defendants – owners who purchased part of the roof of the building, having its possession, became the occupiers. The hole was on the part of the roof belonging to the first defendant and the second defendant knew of its existence; however, he gave instructions to the plaintiff to install the antenna without warning him of the hole.
The Court held that an open hole constituted a laden and unexpected risk, stating that the existence of an open hole on the roof of a building, which is occupied, is not a normal or expected risk even if there are building works carried on.
A person who is called to install an antenna cannot expect or anticipate than an open hole can be left on the roof. The plaintiff was a bare licensee of the first defendant, who had the duty of the static status of the property (state, maintenance and repair of the immovable property) and was liable to warn for the laden and unusual risk, by placing for example a warning sign.
As regards the second defendant, the plaintiff was considered as his invitee, hence the second defendant ought to have known that the roof was not safe for the plaintiff. The Court assessed the liability 70% on the owners of the apartments and 30% on the plaintiff, since he was careless when he went to the roof and took steps backwards, falling into the hole.