Occupier’s liability: what are your duties?

If you occupy land or buildings, then you will usually be under a duty to take reasonable steps to prevent anyone visiting you being killed or injured or suffering damage to their property.  You will also be under a duty not to do anything which may cause harm to your neighbours.

The extent of the duties imposed on you will vary depending on the circumstances but where a breach of duty occurs the consequences could be serious, as Johanne Spittle, Head of Litigation with Ware & Kay in York & Wetherby explains.  

‘We live in a world where anyone who suffers damage or personal injury expects to be compensated’ says Johanne.  ‘This includes people who are lawfully on your property like employees and invited visitors, but also those who are there unlawfully like squatters and trespassers.’

‘Understanding the extent of your duties and the specific risks posed by your property can help to ensure your potential exposure to compensation claims is limited.  This is where commercial property law advice becomes invaluable and why it is important to consult your lawyer at an early stage.’  

Duty to neighbours

You owe a duty to your neighbours to do whatever is reasonable in the circumstances to prevent or minimise the risk of damage being caused to them by any hazard on your property which you know or ought to know exists and which you should reasonably foresee could cause damage if not dealt with. 

The sorts of hazard that you might be expected to know about and address can be quite unusual.  For example, in a case that ended up before the courts a property owner who had demolished a building was held liable for wind and water damage caused to neighbouring property left exposed by the demolition and which it was said the property owner should have foreseen would be a probable consequence.

The steps that it is reasonable to expect you to take will vary depending on the circumstances, which is why it is important to talk to your solicitor.

Duty to visitors

People who are invited or have permission to enter your property are classed as visitors, and under the Occupiers’ Liability Act 1957 you have a duty to take reasonable care to ensure their safety when using your property for the purpose for which they are invited or permitted to be there. 

When assessing the steps that might be required you need to consider the degree of caution visitors to your premises can be expected to exercise to ensure their own safety, which will obviously be quite low when dealing with children or anyone whose judgement may be affected by a physical or mental disability.

Where you are aware of possible dangers you should make sure you give clear and appropriate warnings, although it is important to note that this alone will not absolve you of responsibility unless a court is satisfied that the warning itself was enough to enable a visitor to attend your property and be reasonably safe.

Duty to trespassers

People who enter your property without permission are owed a lesser duty of care which only arises where you:

• know of a danger that exists on your property or where you have reasonable grounds to believe a danger exists;
• know or have reasonable grounds to believe that someone is near or may come near to that danger; and
• it is reasonable to expect you to offer some protection from it.

Examples of potential hazards that you might be expected to address when it comes to trespassers include steep drops, swimming pools and uncovered pits.  Helpfully, the courts have generally been fair when it comes to determining compensation claims made by unlawful visitors, particularly where injuries were sustained at a time when the trespasser was drunk or where they had put themselves in danger despite warnings of potential hazards.  Claims have also been dismissed where it was shown that the occupier of a property could not reasonably have expected the trespasser to be near the hazard at the time the injury occurred.

Advice to occupiers

The advice to property occupiers is to assess potential hazards and how likely it is that visitors or trespassers may be put in danger and to then take reasonable steps to minimize the risk.  Warnings may provide some degree of protection, but this will depend on the nature of the risk so you should always consult your solicitor.

An extra word of warning for landlords

For landlords it is important to also be aware that an additional duty may imposed on you under the Defective Premises Act 1972 if you have an obligation to repair or maintain a property or a right to enter the property to do so. 

The duty in question requires you to take reasonable care to make sure that anyone who might reasonably be expected to be affected by any defect in the property is reasonably safe from injury or damage to their own property.  Whether liability in any given case arises will depend on whether you have an obligation or right to repair the defect in question and whether you knew or ought to know that it existed. There can be some fine distinctions here, so good legal advice is essential.

To mitigate the risk of a claim you should carry out regular inspections and planned maintenance and should always investigate information from tenants about possible defects.  Although a landlord who is not aware of a defect may be able to argue that liability should not arise, it is obviously better to prevent injury and damage than to argue about compensation after the event.

Landlords of short residential tenancies have further statutory duties that are not covered in this article and for which specialist advice should be sought.

For more information, or any other enquiries regarding property or agricultural law, please contact Johanne Spittle on 01904 716000 or 01937 583210 or email johanne.spittle@warekay.co.uk.