Who is liable if I am injured on someone else’s property in Trinidad and Tobago?

Who is the occupier

Liability depends on control of the premises, not ownership. A person is an occupier where they have a sufficient degree of control over premises that they ought to realise that any failure on their part to use care may result in injury to a person coming lawfully there (Wheat v E Lacon & Co Ltd, a House of Lords decision that is persuasive in Trinidad and Tobago). Exclusive occupation is not required, and more than one person may be an occupier of the same premises (Dunbar v Dr Joao Havelange Centre of Excellence [45]). Where the State is the occupier, it has the same liability in tort as a private person for breach of the common law duties attaching to the ownership, occupation, possession or control of property, and the claim is brought against the Attorney General (State Liability and Proceedings Act (Chapter 8:02), ss 4(1)(c), 19(2)).

Customers and other business visitors

A person who enters “upon business which concerns the occupier, and upon his invitation, express or implied”, such as a customer in a shop, is called an “invitee”. The occupier must “use reasonable care to prevent damage from unusual danger, which he knows or ought to know” (Indermaur v Dames, applied in Dunbar [8]–[9]). The duty is to take reasonable care. It is not a promise that no visitor will be hurt. Whether a danger is “unusual” depends on the facts, including the kind of premises and what a visitor would expect to find there.

Slips and falls in shops and public buildings

The courts have held that a person who slips or trips on a floor or a step must show (Kirpalani’s Ltd v Hoyte, a Court of Appeal decision, and Wotherspoon, both applied in Dunbar [10]–[11]):

1. that the substance or condition caused the slip or trip;
2. that it was an unusual danger; and
3. that the occupier knew, or ought to have known, that it was dangerous.

The fact that a person fell is not in itself proof that the floor was an unusual danger. In Dunbar the claimant fell down two concrete steps while leaving a children’s show. The court held that she was not a trespasser on the path she took, because the occupier knew visitors used it and nothing told them not to ([49]–[50]). The claim still failed, because she did not prove that the steps were an unusual danger that caused her fall, or that the occupier knew or ought to have known of any danger ([51]–[52]).

Other visitors and trespassers

A person who is not an invitee is owed a lesser duty (Dunbar [9]). A trespasser is owed the least. In British Railways Board v Herrington the House of Lords held that an occupier who knows of a serious danger on the land, and knows of facts that make it likely that trespassers will come near it, may owe them a duty of “common humanity” to take reasonable steps, such as repairing a fence, to keep them away from it. That case concerned a young child who got onto an electrified railway line through a broken fence. The High Court of Trinidad and Tobago has relied on Herrington to describe the duty owed to people who are not invitees (Dunbar [9]). House of Lords decisions are persuasive, not binding, in Trinidad and Tobago.

Does an “enter at your own risk” sign protect the owner?

A person cannot, by a contract term or a notice, exclude or restrict liability for death or personal injury resulting from negligence, where the liability arises from things done in the course of a business or from the occupation of premises used for business purposes (Unfair Contract Terms Act (Chapter 82:37), ss 4(3), 5(1)). “Business” includes a profession and the activities of a government department or a local or public authority (s 2). A person’s agreement to or awareness of such a notice is not of itself to be taken as their voluntary acceptance of the risk (s 5(3)). The Act applies only to business liability (s 4(3)). It does not cover a private home or other premises not used for business purposes; there, whether a notice protects the occupier depends on the general law. The rule does not extend to some kinds of contract, including a contract so far as it relates to the creation or transfer of an interest in land (s 4(2), First Schedule). See the page on exclusion clauses and notices.

If you were partly to blame

If the injured person was partly at fault, for example by not taking reasonable care for their own safety, the claim is not defeated. The damages are reduced to the extent the Court thinks “just and equitable having regard to the claimant’s share in the responsibility for the damage” (Supreme Court of Judicature Act (Chapter 4:01), s 28(1)).

Time limits

A claim for damages for personal injury must generally be filed within 4 years (Limitation of Certain Actions Act (Chapter 7:09), s 5). The time limits, and the exceptions to them, are explained on the page on personal injury time limits.