09 Nov Occupiers Liability Act and Contracting out of Liability
By: Darren Kautz
The Occupiers Liability Act deals with injuries sustained on the premises occupied by, or belonging to, an entity. It may also extend to other entities such property management companies and leasees. A particular area of interest in personal injury cases arising out of the Act is the ability of occupier to contract out of liability with a party. This measure often takes the form of an exclusion clause in a contract that abrogates or limits the liability of the occupiers for any potential injuries suffered by anyone on the premises.
Section 4 of the Act deals with these exclusions. It states the following:
4 (1) Subject to subsections (2), (3) and (4), if an occupier is permitted by law to extend, restrict, modify or exclude the occupier’s duty of care to any person by express agreement, or by express stipulation or notice, the occupier must take reasonable steps to bring that extension, restriction, modification or exclusion to the attention of that person.
(2) An occupier must not restrict, modify or exclude the occupier’s duty of care under subsection (1) with respect to a person who is
(a) not privy to the express agreement, or
(b) empowered or permitted to enter or use the premises without the consent or permission of the occupier.
(3) If an occupier is bound by contract to permit persons who are not privy to the contract to enter or use the premises, the duty of care of the occupier to those persons must, despite anything to the contrary in that contract, not be restricted, modified or excluded by it.
(4) This section applies to all express contracts.
Section 4(1) explicitly requires the occupier to bring the exclusion clause to the attention of the other party when the contract is being signed. Absent this notice, the courts are likely to hold the exclusion clause unenforceable. In limited circumstances, however, courts have rendered the limited liability clause enforceable despite lack of notice to the other party. These situations mainly involve sophisticated commercial parties who ought to be aware of certain inherent risks and industry practices and guard themselves against injury accordingly.
Join Kautz Injury Law next week as I, Darren Kautz, will discuss another area of personal injury law.