HM Insights

Ignore risks at your peril – the cost of injury of damages to third parties

What duty of care do landlords have to anyone who enters into a property that is owned or controlled by you, and not just employees? The question is very pertinent as we currently are seeing many such claims against businesses, events, local authorities and homeowners alike.

Risk Assessment Insurance Landlord Personal Injury Housing Solicitor Lawyer Scotland

What are your duties?

These claims are largely pursued under the Occupiers' Liability (Scotland) Act 1960. An occupier of premises must take "such care as in all the circumstances of the case is reasonable to see that [third parties entering on the premises] will not suffer injury or damage" caused by the state of the premises.

Who is an occupier?

An occupier is anyone occupying or having control of land or premises. Therefore, this can apply to not only owners of premises but also tenants who are responsible for the repair and maintenance of premises under their lease or by landlords, if they have retained the maintenance and repair obligations.

What exactly is 'reasonable care'?

There is no strict liability imposed upon the occupier but a duty to take reasonable care. If it is reasonably foreseeable that a certain danger to people entering the property exists, then the occupier owes them a duty of care.

What is reasonably foreseeable has been the subject of a large body of case law. In the majority of cases, the courts have taken a common-sense approach in relation to what might cause a danger on the property and the responsibility that people must take when entering premises for their own safety. However, it does depend on all the facts and circumstances.

We have set out some of the interesting cases below as examples to ponder:

In Leonard v Loch Lomond and the Trossachs National Park Authority the pursuer, a 12-year-old boy, fell down some steps on a path at Loch Lomond National Park and suffered injury. It was alleged that a barrier or handrail should have been provided on the path and that there were a number of gullies and exposed roots on the path which represented a hazard.

No-one saw the incident and the pursuer had no recollection of how the accident had happened. However, the path had been put to the relevant statutory standards. Lord Uist decided that the Park Authority had no duty under the Occupier's Liability Act as it was well established that the occupier of land had no duty to provide protection against obvious and natural dangers.

However, there are no guarantees as to the judicial approach that will be taken. There are cases involving accidents in golf clubs where it was held that the golf clubs should have taken modest steps such as putting up a warning sign to warn of possible risks. As a result of knowing about potential risks and taking no action, they faced liability for that failure.

The cost of such claims can also be very high. This has been highlighted in the recent case of Craig Anderson v John Imrie and Antoinette Imrie. Mrs Imrie and her husband owned a farm. She had agreed to look after one of her son's friends who came to play and was eight years old at the time. The children went off to play and left the area they were to play football in. Unfortunately, a heavy gate fell on him causing serious injury. Lord Pentland decided that Mrs Imrie had assumed responsibility for the child at the time of the accident by inviting him onto their land and agreeing to look after them. As a result, she had breached her duties towards him both at common law and under the Occupier's Liability Act. The boy was found to be 25% at fault. The Court valued the case at approx. £326,000.

We understand that this case is in the process of being appealed but demonstrates these types of cases pose significant potential risks to occupiers of premises.

If you have control of a building or are a landlord you need to think if there are any potential risks. Such claims are not easy to pursue but occupiers need to be acutely aware of potential claims that can be made as a result of failing to keep their premises in good repair or ignoring known risks or dangers or not taking any sensible precautions.

All Scotland Sheriff Personal Injury Court

The All Scotland Sheriff Personal Injury Court was established on 22 September 2015 and is located in Edinburgh. Most personal injury claims are being raised there. One important aspect of recent court reforms was the allowance for Jury Trials to be heard in the new personal injury court. In May of this year, the first Jury Trial was heard.

The case related to a claim for damages by the Pursuer on behalf of her son who was injured while playing in his school playground. Liability was denied by the local authority. The Jury returned a verdict in favour of the Pursuer but they found the child to have contributed to the accident to the extent of 96.5%. However, court expenses would come along with that award too.

Get in touch

It is clear that it is not just employees care you need to think about when considering risk. To find out more about this issue, how it could affect your organisation and how we could help, please get in touch.