Cap 314 - OCCUPIERS LIABILITY ORDINANCE 1

Chapter: 314 OCCUPIERS LIABILITY ORDINANCE Gazette Number Version Date

Long title 30/06/1997


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.


[1 April 1960]


(Originally 36 of 1959)

Section: 1 Short title 30/06/1997


This Ordinance may be cited as the Occupiers Liability Ordinance.

Section: 2 Preliminary 30/06/1997


LIABILITY IN TORT


(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.

[cf. 1957 c. 31 s. 1 U.K.]

Section: 3 Extent of occupier's ordinary duty 30/06/1997


(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.

(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



Cap 314 - OCCUPIERS LIABILITY ORDINANCE 2

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 purpose, whether they in fact have
his permission or not.

[cf. 1957 c. 31 s. 2 U.K.]

Section: 4 Effect of contract on occupier's liability to third party 30/06/1997


(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" (合約的局外人) 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.

[cf. 1957 c. 31 s. 3 U.K.]

Section: 5 Landlord's liability in virtue of obligation to repair 30/06/1997


(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.



Cap 314 - OCCUPIERS LIABILITY ORDINANCE 3

(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" (租賃) 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" (業主) 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.

[cf. 1957 c. 31 s. 4 U.K.]

Section: 6 Implied term in contracts 30/06/1997


LIABILITY IN CONTRACT


(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.
[cf. 1957 c. 31 s. 5 U.K.]


Section: 7 Application to Crown 30/06/1997


Expanded Cross Reference:

3,4,5



GENERAL


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 (Cap 300) 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.

[cf. 1957 c. 31 s. 6 U.K.]