Legal: Need to know guidance – owner occupier liability

Legal: Need to know guidance – owner occupier liability

The legal framework governing liability for customers’ and other visitors’ safety is set out in UK statutes for ‘occupiers’ liability’. These have particular application in relation to risks due to defects in newly-built and newly-fitted out premises, and they apply where contractors are performing works on site, both while customers are present and out of hours.

The occupiers’ liability legal framework creates an overarching duty on food businesses to ensure lawful visitors are “reasonably safe for the purpose for which they are on the occupier’s premises”. What this means in practice varies according to the circumstances, as the courts decide on a case-by-case basis, taking all of the circumstances into account; but it makes it particularly important to obtain specialist legal advice in relation to the adequacy of measures you take to protect visitors from risks, particularly where such risks arise from building defects or otherwise relate to building works. You take steps to protect consumers of your product, so why wouldn’t you make the same effort for visiting customers?

New works by contractors are also included in the legal framework, but in this case a different legal test applies: did the occupier act reasonably in entrusting the work to the contractor, and had they taken reasonable steps to see that the contractor was competent and the work properly done?

As a result, it is important to research the background and qualifications of any potential contractor. This would likely involve checking credentials, such as Gas Safe registration for plumbers and Construction Skills Certification Scheme cards for other types of tradesmen.

What legal avenues are available if things go wrong?
The best approach is to deal with risks as they arise and before any damage occurs. However, if things do go wrong, redress is not limited to defending a claim (through insurance or otherwise). Additional legal avenues may lie against those who created the risk in the first place, particularly in relation to defective building works.

For example, it is worth engaging a solicitor to review the terms of the key agreements, as these often confer rights on the occupier in respect of the quality of building works, particularly in new build premises. Likewise, for occupiers or owners of food business premises who have commissioned fit-out works under a construction contract, a professional review of the documents can reveal obligations on the contractor, which in turn can be used as the basis of legal action to mitigate the impact on your business should things go wrong.

Often these contracts are subject to a ‘rectification’ or ‘defects liability period’, which makes prompt legal action vital to protect your position. It is important to seek specialist legal advice sooner rather than later, particularly when defects in building works present a risk to visitors.

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