Owners of rural land and estates are often approached to host a variety of events on their property. The revenue and press coverage may well be attractive, but the risks of hosting such an event should be carefully considered before you say yes.
One of the main risks is your potential liability if a worker at the event or a visitor has an accident. What happens if a person is injured and brings a claim against you? Who will pay for that claim? The costs could be considerable, especially where the injury or injuries sustained are of a serious nature.
You will not be liable for all accidents which occur on your property but it is important that you understand what the law requires you to do so that you can assess the risks of an accident occurring and the risks of you being responsible for that accident - and then take steps to reduce those risks, so far as possible.
As an owner of rural land or an estate, when might you be liable for an accident?
As a landowner, your duty of care to a worker at an event, or a visitor, would normally arise from your capacity as an “occupier” of the land. Most Scottish personal injury claims brought against an occupier are based on a breach of the Occupiers’ Liability (Scotland) Act 1960 (the 1960 Act).
The 1960 Act imposes a duty on occupiers to take reasonable care to avoid persons suffering injury as a result of dangers due to the state of the property or anything done or omitted to be done on the property.
In order to establish a breach of the 1960 Act, the injured person must be able to prove three things; (1) that you are the occupier of the land, (2) that there was a danger and (3) that you failed to take reasonable steps to avoid injury.
1. Are you the occupier for the purpose of the Act?
In order for you to be an occupier, the injured person must prove that you had control over the property and, in particular, whatever it was that caused the accident.
It is important to note that an occupier might not necessarily be the owner of the property and that there can also be more than one occupier. The key question is who had control of the property at the time of the accident?
In the case of Craig Anderson v John Imrie and Antoinette Imrie 2018 the Court had to determine who the occupier of a farm was at the time of an accident involving a child who was injured by a gate falling on him.
The farm was owned by Mr Imrie senior. Mr Imrie’s son, John, and his wife, Antoinette, lived on the farm. John Imrie was employed by his father to work on the farm.
The court held that John and Antoinette Imrie had practical and effective control of the farm on a day-to-day basis and were in a position to take the steps required to comply with their duties under the 1960 Act. They were, therefore, the “occupiers” of the farm at the material time - although it should be pointed out that the identification of the occupiers of the farm was not ultimately key to liability in this particular case - it was, instead, the failure to supervise the child properly.
In determining whether you may be deemed an occupier for the purposes of the 1960 Act, the main factors to think about are therefore (i) who can invite or exclude individuals from coming onto the land, (ii) who has responsibility for inspecting the property for dangers and (iii) who has responsibility for rectifying any defects. You should also be aware that even if you have a tenant on the land, you might still be liable for the accident as a landlord under the 1960 Act if you have responsibility for maintenance or repairs.
2. Was the accident caused by a danger on the land?
Once the injured person has established that you are an occupier, he or she must then prove that the accident occurred because of a danger on the land. Not everything which has the potential to cause injury will be considered a danger.
In general, features of the natural landscape, while giving rise to a risk of injury, will not be considered a danger if they are longstanding and obvious. There are lots of cases which deal with this issue but, for example, in Fegan v Highland Regional Council 2007 the claimant fell from a cliff on land controlled by the Council. She argued that the Council should have fenced the cliff edge. The Court held that an occupier was not expected to provide protection against an obvious danger on his land which arose from a natural feature such as a lake or a cliff. However, the decision may have been different if the case had involved a child and the lake was considered an “allurement” to which it would be reasonably foreseeable a child may be attracted.
Even manmade features may not be dangers. In Graham v East of Scotland Water Authority 2002, the Judge found that a reservoir and wall were not a danger, despite being man made because they were “well-established, permanent and familiar features of the landscape”. Similarly inMichael Leonard v Loch Lomond (CSIH 2015) a path in a national park was not a danger because it did not create a “special or unfamiliar hazard”.
In order to successfully establish that a feature of the land presents a danger, the injured person must show that there is something special, hidden or unusual about it. For example, in John Cowan v Hopetoun House Preservation Trust 2013 it was held that a ditch (known as a “ha ha”) was an unusual feature of the land and that this, in conjunction with the fact that Mr Cowan was on the land in the dark, constituted a danger.
You should consider whether there is anything unexpected or unusual on your land which could cause injury. Particular attention should be paid to features which might be obscured or not obvious to visitors unfamiliar with the property.
You should also take into account the way in which the land is to be used and the time of year and day that visitors will be there. As illustrated by Cowan, something which would not be considered a danger in daylight may well become a danger in the dark. Another factor is the nature of the individuals who will be at the event. For example, certain features may not present a danger to an adult but might to a child.
3. Did you fail to take reasonable steps to avoid injury?
If a claimant has established that you are an occupier and that the accident occurred because of a danger on the land, he or she must then prove that you did not take reasonable care to guard against injury arising. As an occupier, you are not under an absolute duty to ensure that injury does not occur. The Court may take into account what other occupiers do in similar circumstances and whether or not there have been previous accidents on your land as a result of the same or a similar danger.
In the case of Cowan, the Court found that the occupier would have discharged its duty by having a member of staff clearly identify the correct route along with a clear instruction not to deviate from that route.
If you have identified any potential dangers on your land then thought should be given to whether you need to arrange for signage, instructions for visitors and/or designating “no-go” areas.
Advice & Insurance
You may want to obtain advice from a health & safety expert before agreeing to host an event. You should also make sure that you have appropriate insurance cover.
Your current insurance policy may not cover you for the event. Any existing policies should be checked carefully and, where there is no cover, insurance should to be arranged in advance of the event. The insurer may attach specific conditions to the policy and care should be taken to ensure that those are met, to avoid any claims being refused.
Contractual agreements and indemnity
It is important that your contract with the party, or parties arranging the event, details who will be responsible for any accidents which occur at the event, and any losses arising. Losses may not just relate to an injury as there could also be, for example, damage to property.
Ideally, indemnities ought to be in place requiring the party or parties using your property/land to meet all of the costs arising from any accidents. You should be aware however, that the existence of an indemnity will not alter your legal liability to the injured person; it will simply oblige the other party or parties to meet the financial costs incurred.
As well as the potential implications of a personal injury claim against you as an occupier, there may be other health & safety considerations for you, especially if there will be work being done on the land while the event is taking place. For example, there may be farm vehicles or plant in the vicinity of the event.