In Scotland, occupiers of land and buildings have a general responsibility to take care for the safety of visitors to their premises. Visitors include those invited and those who are unwanted. The duty of care towards visitors is a reasonable one. In other words, the law does not require all steps to be taken to ensure visitors safety, just reasonable steps.
If the occupier does not take reasonable care to ensure the premises are safe he may be liable for any injury caused to visitors which arises in consequence of that danger.
The Occupiers Liability (Scotland) Act 1960
Although the common law of Scotland imposed a duty of reasonable care on occupiers of land for the safety of visitors to their land or premises before 1960, there was some uncertainty about whether that duty of care extended to uninvited visitors such as children playing on land without permission. The Occupiers Liability (Scotland) Act 1960 was passed in an attempt to resolve this uncertainty. The Act does not distinguish between invitees and those who are on land without permission. The occupier of the land is under a reasonable duty of care to ensure the safety of all visitors to his land.
Control of Land
The Act imposes duties upon the person or persons in control or occupation of the land. The occupier of land may not necessarily be the owner. Occupation means, for the purposes of the Act, control of the premises. Control is a matter of fact and circumstance. Possession of the keys to a property may indicate control. The power to exclude persons from the property would indicate control. But the mere fact that you have a right to enter premises, say to inspect premises, does not necessarily indicate control. Occupation and control are usually synonymous. Control can be exercised jointly.
In most cases it will be obvious who controls or occupies the land.
Rented Land
Where premises are rented but the landlord is responsible for the maintenance or repair of the premises the landlord is deemed to be in control of the premises. For example, local authorities and housing associations are generally responsible for any repairs to the premises they let out - they are therefore the occupiers of the premises for the purposes of the Act. Thus an accident caused by a defective stair in a tenement close or because the stairs were inadequately lit will be the responsibility of the landlord who is responsible for the maintainence of the stair.
Most commercial leases provide that the tenant is responsible for the repair and maintenance of the building and in this case the landlord would not be liable for any dangers arising from the state of the building.
The Definition of Land and Premises
The Act does not tell us what land or premises means. It does include all buildings including vehicles, vessels and aircraft. The Court defines premises or land widely and liberally.
The Extent of the Act
The Act imposes a liability for damage to persons and property as a result of dangers arising from the land.
It is possible to contractually modify your liability under the Act. It would not however be possible for a landlord who had responsibility for the repair and maintenance of premises to contract out of his obligations as he would have to enter into an agreement with every visitor to the premises which is clearly impractical.
The Duty of care to visitors
The duty of care towards visitors to the premises is a reasonable one.
The occupier must pay heed to the status of the visitors who may visit the premises. Thus greater care will have to be taken in the event of children being visitors.
Uninvited Visitors
In England special rules apply to trespassers on land. The concept of trespass does not exist in Scotland and the status of the visitor be it an invited guest or a unwanted visitor is irrelevant.
Where persons enter land knowing the risks of dangers on the land the provisions of the Act do not apply. Thus, where a derelict building is boarded up and warning signs erected indicating it is in a dangerous condition and someone breaks in and injures himself it is likely the court will find that the visitor took the risks of injury upon himself.
However, homeowners cannot lay traps for housebreakers. In this instance the risks would not be known or obvious to the housebreaker. If the housebreaker were injured as a result of a trap being laid the householder may also be guilty of assault.
There are many examples of land and premises being private and from which visitors or the public are expressly excluded. An tyipical example would be a railway line. The occupier of private land must till ensure that visitors are protected from dangers arising on that land. In the case of a railway there remains a duty to of reasonable care ensure the public are effectively excluded. It is not necessary that fencing be impenetrable but it should be adequate to deter entry. Where a child for instance does overcome a substantial fence and injures himself it is likely that no liability will arise as reasonable care has been taken to prevent entry.
Warning Signs
The erection of warning signs will assist the occupier to evade or minimise his liability under the Act. The occupier must remember that visitors may be children who cannot read or who's judgment cannot be relied upon.
Merely sign posting a danger may not be considered to be a reasonable and sufficient step by the Court to prevent exposure to danger.
Derelict Buildings
In general the occupier of a derelict building will have to take reasonable steps to render the building safe for visitors.
In order to prevent visitors entering the building, the building will require to be secured and regularly checked to ensure the building remains secure. Warning signs will help avoid liability but consideration must always be made for determined visitors such as children and visitors who enter the building because the security has been previously breached by vandals and not repaired.
If you have suffered an accident or injury then it is best to contact our accident claims lawyers today on 0141 638 5896 or fill out our online enquiry form. We will be happy to provide you with free initial advice.