Are you an occupier? How often do you review and inspect your properties? Do you have a positive written risk assessment policy which you apply rigorously? How well are you warning people who may come onto your land – whether you invite them or not - of the risks they may encounter? Is there anyone vulnerable likely to come onto your land e.g. children or young adults?
The tragic recent case of Bowen (a Child) and others v The National Trust emphasises why occupiers should be vigilant about the condition of their land and buildings and serves as a reminder of the need to have a positive risk strategy in place. It does not matter whether the land is commercial, agricultural or residential – care must be taken.
The scope of duty towards people on your land depends crucially on their status. There are two regimes: lawful visitors (and their personal property) are covered by the Occupiers Liability Act 1957 whereas other people are covered by the Occupiers Liability Act 1984. In simple terms, a reasonable occupier has to take more care for lawful visitors than for trespassers. But trespassers are still owed a duty of care as will be seen.
The Occupiers Liability Act 1957 provides that occupiers have a “common duty of care” towards visitors. Section 2(2) of the 1957 Act provides: “ 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 purpose for which he is invited or permitted by the occupier to be there.”
This duty – in summary, to take reasonable care to provide reasonable safety – was considered in Bowen. A young visitor to Felbrigg Hall, a property owned and managed by the National Trust, was taking part with others in an outdoor educational activity and took shelter from rain with some other members of his group under an old beech tree. A large branch broke off the tree without warning and killed him. Three of his companions were seriously injured. The subsequent action against the National Trust claimed that the National Trust was in breach of its duty as occupier. Had the National Trust taken reasonable care to provide reasonable safety? The court decided that it had, reaching a decision based on the adequacy of the National Trust’s risk assessment processes and compliance with inspection procedures. Bowen makes it clear that it is essential for occupiers to assess the risks and dangers on their land and have a strategy in place to deal with them. It is a positive duty – not only a duty to avoid negligent or careless acts but a duty to positively avoid negligent or careless omissions.
Relevant factors include:
- How obvious the danger or risk is e.g. its location, its visibility, the frequency with which the area is visited, whether the surroundings are well lit etc
- The magnitude of the risk
- The likelihood of the risk happening
- The effectiveness of warning notices
- The age and capacity of the visitor. (The 1957 Act specifically states that an occupier must be prepared for children to be less careful than adults)
- The purpose of the visit
- The expected conduct of the visitor
- The knowledge of the occupier
- The consequences of the danger happening
- Self-accountability – to what degree can or should the visitor be aware of obvious dangers and - take care to avoid ordinary risks?
- The effectiveness of risk assessment processes
A trespasser is not a visitor and is not owed a “common duty of care”. Instead, the regime under the Occupiers Liability Act 1984 protecting non-visitors (but not their personal property) is limited to a duty to take “such care as is reasonable….to see that the trespasser does not suffer injury on the premises” by reason of any danger. Three conditions have to be met for the occupier to be liable. First, the occupier must know of the danger or must have reasonable grounds to believe it exists. Secondly, the occupier must know – or have reasonable grounds to believe – that the trespasser is in the vicinity of the danger or is likely to come near the danger. Thirdly, the “risk is one against which, in all the circumstances of the case, he [the occupier] may be reasonably be expected to offer some protection.” The duty is therefore based on occupation of the land with knowledge or foresight that an unauthorised person may come on to the land or authorised persons may use it for unauthorised purposes.
Relevant factors include:
The seriousness of the danger The type of trespasser - a child will be owed a greater duty than an adult. The type of activity that can be envisaged on the land
The absence of protection because of non-visitor status is demonstrated by Harvey v Plymouth City Council. In the early hours of the morning, Mr Harvey – who had been drinking – was left by his companions in a taxi to pay the fare but decided not to do so, got out of the taxi and ran away. He fell down a steep slope from land owned by Plymouth City Council, over a drop of over 5 metres and into a Tesco car park. He was seriously injured. There was evidence to show that the Council’s land had been fenced off but that it was habitually used by all sorts of people, especially at night. The Court of Appeal decided that whilst the Council might have given implied consent for the use of the land by various members of the public, its consent was limited, at most, to giving consent to normal recreational activities carrying normal risks – it did not stretch to Mr Harvey’s actual use which resulted in the tragedy. Mr Harvey was not a visitor for the purposes of the 1957 Act and did not have protection under it. The Court of Appeal echoed a previous decision which made it clear that certain activities on the land may not be permitted, even if other uses of the land may be – “when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters.”
The key factors to bear in mind are:
Are you an occupier?
The expression “occupier” is not defined in the legislation. It is important to appreciate that there may be more than one occupier of the same premises, each under a duty to use care relative to the degree of control they each have. Owner-occupiers and tenants are obviously occupiers. Landlords who retain common parts are likely to be occupiers of those common parts. But, for practical purposes, a useful test is to ask whether the person in question has a sufficient degree of control over the premises to ensure that the premises are safe. Many contractors doing works will be temporary occupiers as a result.
Is the person on your land a visitor?
A visitor is someone who accesses or enters onto land with the express or implied permission of the occupier. A person’s status as a visitor may be inferred from actual habitual use where no steps are taken to prevent access – it is no defence to say that the land is private if the owner of it knows or should know how it is actually used. A visitor may become a non-visitor as soon as he stops doing what he is permitted to do on the land and does something else instead.
Are warning notices effective?
Where business premises are concerned, there can be no exclusion of liability for death or personal injury resulting from negligence. But warning notices can effectively demonstrate that an occupier has properly considered the risks and dangers that might be encountered by other people on his land so that anyone who does not heed the warning takes full responsibility for his own actions.
What should you do?
You should inspect your property regularly. You should have transparent written risk assessment procedures in place. If there are risks or dangers, you should formulate a strategy for dealing with them e.g making them safe or inaccessible. Developers who own bare sites should make sure they are securely fenced. Developers who own buildings which are vacant should make sure that they are securely boarded up and inaccessible. Warning notices should be used.
So, although the courts will go some way to recognise that people should take responsibility for the obvious risks they take, don’t wait. It may be too late. Take care now.