Rooftopping – consequences for owners

Rooftopping and occupiers’ liability

Of the great number of perplexing trends created by generation Y, the recent trend of rooftopping stands out as particularly strange and risky.

Rooftopping is where individuals climb to the top of office buildings, either those under construction or completed, typically in order to hang off the edge and take a photograph of the scene below.  The practice is dangerous and has resulted in some deaths.

For instance, in December 2012 a man fell to his death after rooftopping with his girlfriend on top of the Intercontinental Hotel in Chicago.

It seems the craze is taking off in Australia, with the Property Council of Australia recently warning property owners and managers that security and regulatory responsibilities should be reviewed in light of the growing trend.

Occupiers’ liability

Occupiers’ liability is the legal responsibility of an occupier of premises towards visitors, including those who have unlawfully entered the premises and suffered injury during the course of their visit.

The Occupiers’ Liability Act 1985 (WA) (OL Act) places a duty on the occupier of premises to provide a standard of care to persons and property on the premises controlled by them. 

The OL Act defines the “occupier of premises” as the “person occupying or having control of land or other premises”.  Where the premises are leased and the landlord is responsible for the maintenance or repair of the premises, the landlord owes a duty of care to entrants in relation to harms arising from the landlord’s failure to carry out its responsibilities of maintenance and repair.   

The OL Act provides that the occupier must show care towards these persons in respect of:

  • dangers which are due to the state of the premises; or

  • anything done, or omitted to be done, on the premises and for which the occupier of premises is by law responsible.

The standard of care required is “such care as in all the circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of any such danger”.

An occupier of a high rise building should carry out the following assessment to determine the precautions that the occupier must reasonably take to discharge its duty of care:

  • the gravity and likelihood of the probable injury;

  • the circumstances of the entry onto the premises;

  • the nature of the premises;

  • the knowledge which the occupier of premises has, or ought to have, of the likelihood of persons or property being on the premises;

  • the age of the person entering the premises;

  • the ability of the person entering the premises to appreciate the danger; and

  • the burden on the occupier of eliminating the danger, or protecting the person entering the premises from the danger, as compared to the risk of the danger to the person.

The duty of care owed by an occupier is, however, limited in respect of risks willingly assumed by the person entering the premises.  In that instance, the occupier has a duty to the person not to:

  • create a danger with deliberate intent of doing harm or damage to the person or his property; and

  • act with reckless disregard of the presence of the person or their property. 

Even though the scope of the duty of care owing to rooftoppers (as people who trespass on the property and willingly assume risk) may be:

  • weaker than if those persons were invited on the premises by the occupier; and

  • limited by dangerous behaviour on the part of the entrant,

a duty of care to prevent harm may nonetheless be owed to them. 

Once an occupier knows of a specific risk of harm arising from known dangerous behaviour by entrants, the occupier must balance that risk against the reasonableness of taking precautions to avoid that risk.

Unless the occupier takes steps to restrict access to the building and ensure that the building is in a reasonable state of repair, the occupier may be acting in reckless disregard of the presence of the person on the premises.

Liability for damages for breach of duty of care

Injury to those who can access the top of high rise buildings to rooftop is reasonably foreseeable.  Occupiers could be liable for damages arising from the loss or injury suffered.

The occupiers’ liability for damages may, however, be reduced to the extent of the rooftopper’s contributory negligence in failing to take his or her own precautions against the risk of harm.

Where rooftopping results in death, a claim for damages may survive for the benefit of the deceased’s estate.  An action may be brought under the Fatal Accidents Act 1959 (WA) by a personal representative, executor or administrator of the deceased person for the benefit of certain members of the deceased person’s family.

What should occupiers do?

In order to prevent liability arising under the OL Act in the event of an injury from rooftopping occupiers of office buildings should be extremely diligent in safeguarding access to their buildings.  The following steps may assist in limiting liability:

  • ensuring rooftop access is only available to those with security clearances;

  • limiting entry points on buildings sites by way of adequate fencing;

  • installing security cameras and/or employing security guards at all access points on the building site or office building;

  • erecting appropriately worded signage at all potential entry points; and

  • installing railings around the top of the building.

Taking reasoned preventative steps at an early stage could go a long way toward mitigating the risk of occupiers’ liability in the event of an injury arising from this trend.

The occupiers’ duty of care not only applies in the context of rooftopping, but also applies where any persons enter the premises, whether lawfully or unlawfully.