Know your liabilities

Boys in stream

06 Mar Know your liabilities

Extracts from ‘The Law and Visitor Safety’, chapter 9 of ‘Managing Visitor Safety in the Countryside – Principles and Practice’, a publication of the Visitor Safety in the Countryside Group.

Under Section 2(2) of the Occupiers’ Liability Act of 1957 (OLA57), the occupier has “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”

Under the OLA57 and OLA84, the occupier of premises (the woodland owner) owes a duty of care to lawful visitors and trespassers, by reason of the state of the premises and things done or omitted to be done on them. In Scotland the same duty of care is owed under the Occupiers’ Liability (Scotland) Act 1960.

‘Premises’ includes buildings, land, and ‘any fixed or moveable structure, including any vessel, vehicle or aircraft’. Bodies of water on the land, (such as lakes, ponds and canals) can also be premises.

The ‘Occupier’ is the person or body that has sufficient control over the premises to be in a position to take the steps necessary to protect people who otherwise may be at risk (i.e. the woodland owner/s). If you own and are in sole possession of the land you are clearly the occupier. (A landlord, however, retains a duty of care to people affected by defects in the woods that were created before the property was let, and even after in some circumstances). If there is more than one occupier (i.e. more than one owner) each owes a duty of care that is in relation to the degree of control each has over the land.

An occupier (woodland owner) may have some liability for an accident on adjacent land if aware of a danger that is not readily apparent to a visitor. If there is ready access from the occupier’s land, the occupier may have a duty to prevent the visitor straying into danger. Visitors and trespassers must take reasonable care for their own safety. Negligence on their part can be set against the liability of the occupier.

You are not liable for risks that are willingly accepted by a visitor or trespasser, e.g. when a member of a climbing club is rock climbing. However, they are not accepting any additional risks that arise out of your negligence.

Crop spraying (farmers). It is a condition that in respect of crop spraying by or on behalf of the Insured on the Insured’s own land that all reasonable precautions are taken to prevent loss of or damage to stock and crops belonging to owners of adjacent properties. Also that notice is given to the owners of animals likely to be present in fields or areas bordering those to be sprayed of the Insured’s intention to carry out spraying operations.

Due to the continuing adverse climate conditions being experienced in the UK owners are reminded that they are required to inspect their woodlands regularly to assess for damage or disease to ensure the public are safe.

NB:
1. In the event of an accident the occupier (owner) will need to demonstrate that his/her actions were reasonable in the circumstances.
2. You must consider the particular needs of people you invite onto your property.
3. You must be able to demonstrate that your precautions are reasonable in the circumstances.
4. The historic nature of the premises can be relevant.
5. You may not have to warn of dangers when it is reasonable to assume that they are obvious to the visitor.
6. You may not always have to fence hazards if they present an obvious danger.
7. You must be prepared for children to be less careful than adults although with young children the parent may hold the primary duty of care.
8. Warning a visitor of dangers might be sufficient to absolve you from liability, but only if it was sufficient to enable the visitor to be reasonably safe.
9. In some circumstances you can chose to restrict or exclude your liability by imposing entry conditions.
10. Stiles or gates across footpaths or bridleways must be maintained by the landowner in a safe and negotiable condition.
11. It is an offence to place barbed wire adjacent to a public right of way where it is likely to cause injury to people legitimately using the path.
12. You have a duty of care towards trespassers who are also able to claim for personal injury.

The following clarification is provided for owners:

“If a tree owned by a client falls on a road or building and causes damage cover would only apply if the owner of the tree was legally liable for the loss to the third party. In other words, if the tree was diseased and still standing it would be deemed to be the clients “fault” it wasn’t felled, however, if a healthy tree fell and caused damage cover would not attach as Insurers would say the client cannot be responsible for a healthy tree falling.

To clarify, the cover protects the client should they be at fault/responsible/liable for a third party suffering a loss due to an incident occurring on the client’s own land, and that land must have growing timber on it.”