Breadcrumbs
NCAF4/1 Occupiers liability
1. This paper invites discussion of what duty of care, if any, an occupier should owe to a member of the public who exercises the proposed new access rights over open countryside. Some open country areas are intrinsically dangerous, while others periodically become so when adverse weather conditions descend at short notice. From time to time in the future some members of the public will inevitably sustain injuries while exercising the new rights, as some already do when using areas of open countryside today. The extent to which occupiers should bear any liability for such injuries is therefore an important and emotive issue.
2. To facilitate this discussion, this paper provides brief summary information about background and issues. It does not purport to be an authoritative or comprehensive statement of the law in this area.
The status quo
Visitors
3. The Occupiers' Liability Act 1957 was enacted following a Royal Commission report in 1954 to provide a new statutory framework for occupiers' liability towards 'visitors', which had previously been wholly determined by the courts. 'Visitors' in this context embraces people who visit land by right, invitation or implied invitation (eg postmen), or permission (eg users of permissive paths or Stewardship access land).
4. The Act ruled that in relation to possible dangers arising from the state of the premises (in the widest sense of the word) or from things done or not done there, an occupier has the same "common duty of care" towards all types of visitor. This 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 land or property for the authorised purpose.
5. The duty only applies while the person's use is authorised - eg not at night if people are not allowed then, or not when people are doing things they have no authority to do there. The occupier has to expect children to be less careful than adults, but may equally expect people like workmen to be aware of any special risks associated with their trade.
6. There are some exceptions from the normal common duty of care under this Act towards visitors, for instance:
a. risks willingly accepted by the visitor (eg under a climbing agreement);
b. risks excluded by the occupier by notice etc (though the scope for saying things like "we take no responsibility for injury here" was to some extent narrowed by the Unfair Contract Terms Act 1977);
c. risks arising on public rights of way; and
d. risks arising on land subject to an access agreement or order made under the National Parks and Access to the Countryside Act 1949, or on land subject to access rights under the Dartmoor Commons Act 1985.
Trespassers
7. A second Royal Commission report in 1976 concluded that a parallel statutory provision was needed to clarify the liability position towards trespassers. The Occupers' Liability Act 1984 did this. It says in effect that an occupier owes a duty towards a trespasser (again in relation to any danger arising from the state of the land or property or from things done or not done there) if:
e. he is or should be aware of the danger; and
f. he knows or should know that people may in practice be exposed to the danger; and
g. he can reasonably be expected in all the circumstances to offer them some protection from it.
In these circumstances, it says, the duty is to take such care as is reasonable in all the circumstances to see that the person is not injured as a result of that danger. This duty may in appropriate cases be discharged by giving suitable warnings. Unlike the duty to visitors, it does not apply to loss of or damage to property.
8. Again the duty excludes people who willingly accept the risk, and people using public rights of way. Depending on the circumstances, a user of a right of way may have a claim against the highway authority if injured, or may be able to claim at common law against an occupier who has been malicious or grossly negligent.
The position of the courts
9. The view taken by the courts on public liability has in the past been shaped particularly by occasional high profile cases of injury or death to children, often occasioned by serious hazards such as railway lines or electricity substations. The courts tend by default to apportion some liability in such cases if they can, no matter how stupid the action of the child may have been. But even where children have been injured, the courts appear to have been generally unwilling to hold the occupier liable where the injury arises from the normal state of the land - eg through falls from cliffs or down potholes.
Irish law
10. In 1995 the Republic of Ireland ruled that something akin to the lower 'trespasser' duty of care should apply to all recreational visitors. There have been some reports that the emphasis placed by this legislation and guidance on the importance of warning notices has led to a proliferation of unwelcoming signs in the Irish countryside.
The Government's position
11. The February 1998 Government consultation paper on access to open countryside took the view that in general walkers must bear the primary responsibility for their own safety on open country, and proposed (at proposal 25) that the duty of care owed by occupiers towards them should be that owed to a trespasser, rather than the higher duty of care owed to a visitor. This proposal was confirmed by the March 1999 Framework for Action.
Landowners' position
12. Landowners' organisations have strongly argued that it would be unreasonable for access legislation, in addition to creating public access rights on specific types of open countryside, to leave occupiers subject to any duty of care towards those exercising such rights - even at the 'trespasser' level. They are concerned that the new rights might in practice lead to more injuries (by promoting more use of open countryside) and/or an increased level of civil claims. They are also concerned that, whether or not either of these outcomes actually transpires, insurance companies may in any event increase public liability premiums in order to offset any possible increase in payouts.
Users' position
13. The organisations representing recreational interests do not appear to be pressing for any particular level of duty of care to be owed to the public, so long as there is appropriate liability for any risks arising from the activities of occupiers or their agents, as distinct from risks caused by the state of the land.
Questions for discussion
14. Among the questions that seem to arise for discussion are these:
h. Would setting the duty of care under access legislation at the 'trespasser' level, as Government intends, be likely to result in practice in a reasonable outcome for both occupiers and users?
i. If not, how else might the duty of care be set? A completely 'own risk' approach might not be tenable, but could the law draw some workable distinction between:
a. injuries arising from the normal state of the land in respect of which those exercising the right of access might have been expected to take responsibility for their own safety - for which no claim should be possible; and
b. injuries arising from something the occupier or his agent does there - for which the duty of care might operate at the 'trespasser' level?
j. Alternatively, are any presentational changes required to give clearer effect to the Government's stated aims on this front? What might these be?
Joint letter from CLA and BMC to the Minister
15. As this paper was being finalised, the Countryside Agency received a copy of a letter dated 13 January written jointly to Michael Meacher on this subject by the CLA and BMC. A copy of this letter is at Annex 1.
