This Farm Safety Week we're exploring occupiers' liability, and the responsibilities of landowners and occupiers towards those on their land.
To coincide with Farm Safety Week 2024, this article looks at the concept of occupiers' liability in the rural sector, and the responsibilities of landowners and occupiers towards those who enter their land in Scotland.
What is occupiers' liability?
Under the Occupiers Liability (Scotland) Act 1960, those occupying land owe a duty of care towards people coming on to that land. The occupier is the person having control of the land – often this is the landowner, but it may be the tenant or a contractor. The level of the duty owed is the level with which it is reasonable to foresee will be needed so that people do not suffer injury or damage, and what is reasonable depends on the circumstances of each case.
There are a few key factors influencing what is considered reasonable, including the following.
Nature of the land/ premises
Rural and agricultural land often has inherent hazards such as machinery, livestock, open water, and uneven terrain. These should be borne in mind when assessing what steps must be taken to avoid injury or damage.
However, in rural areas, there are also likely to be physical features that could be cause injury, particularly to young people or those acting especially carelessly, but against which it is impossible to guard by protective measures. An occupier is not expected to take proactive steps in relation to every possible risk. For example, in the case of Fegen v Highland Regional Council in 2007, the court found there to be no liability where an occupier failed to erect a fence between a bench and a cliff top.
Purpose of the visit and identity of visitors
Occupiers' liability applies to guests, those exercising their right of responsible access (right to roam) under the Land Reform (Scotland) Act 2003, and trespassers – but the level of care required can vary depending on the purpose of the visit and identity of the visitors.
Consider also the age of the visitor – a court decision in 1984 stated that more warning is required if young children are likely to cross the land. Periods of greater public use (e.g. summer and school holidays) should also be kept in mind.
Knowledge of the risks
Occupiers must be aware of the risks present on their land and take appropriate steps to mitigate them.
Key areas of concern
Machinery and equipment
Farm machinery poses significant risks. Ensuring that all equipment is properly maintained, and safely stored and operated, can mitigate these risks. Clear signage and restricted access to hazardous areas are essential.
Livestock
Animals can be unpredictable. Farmers should ensure that livestock are securely enclosed and that visitors are made aware of potential dangers. If the animals pose a risk to the public, steps should be taken so that the animals are not kept in a field or area where the public take access.
Risk assessments are crucial. Health and Safety Executive suggests that, with regard to cattle, checks of the cattle and fences etc. surrounding the field are to be carried out at least once per day.
The potential for liability for injury by animals under the Animals (Scotland) Act 1987 should also be considered.
Natural features
Features such as ditches, uneven ground, and bridges over water may require particular attention. While any duty on occupiers does not apply to dangers inherent in the ordinary, familiar features of the landscape (whether these are natural or man-made), the case law demonstrates that there may be situations where it is reasonable to fence off certain features to prevent accidents. Adequate lighting and signage or other markings ought to also be considered in circumstances where fencing off a feature is not possible or reasonable.
In Cowan v Hopetoun House Preservation Trust, a ha-ha was distinguished from other natural features such as riverbanks or cliffs due to it being an unusual and concealed feature that someone crossing the land would likely be unaware of. In this case, Mr Cowan stepped over the edge of the ha-ha on an estate while on an evening bat walk with his grandson. He suffered a fractured ankle as a result. The court found that the owners of the estate owed a duty of care to those walking in the vicinity of the ha-ha.
In contrast, in Graham v East of Scotland Water, the court held that the occupier of a reservoir, which was separated from a main road by a wall as low as 30cm at some points, did not have a duty to fence it off, even though the wall was easily low enough for somebody to jump off or trip over. The reservoir and the wall were "well established, permanent and familiar features" of the landscape, even though they were man-made.
Open water
Occupiers' liability provisions apply to those invited onto the land to swim, such as those who are participating in organised sporting events like triathlons. The duty of care may also extend to open water, or wild, swimmers, but, as noted above, an occupier is not normally expected to guard against dangers which are obvious.
In the English case of Tomlinson v Congleton in 2004, a young man broke his neck when diving into a lake. The lake was in a country park and swimming in the lake was not permitted – there were signs up stating this. The House of Lords did not find the landowner liable, reaffirming the principle that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious.
The difficulty is in establishing whether a body of water is an obvious risk. The Scottish Outdoor Access Code suggests that responsible behaviour by land managers includes indicating where people can best take access to a river or loch to help minimise any problems. Risk assessments are critical.
Section 2(3) of the 1960 Act explicitly excludes any obligation on an occupier over risks willingly accepted by the visitor. This may apply to risks that may be inherent in pursuits such as wild swimming and more risky activities like rock climbing, where, depending on the circumstances, the access taker may be taken to have accepted the risk of injury if they have an accident.
While an individual may be allowed to engage in activities such as open water swimming at their own risk, the prudent course of action by a landowner or occupier is to act responsibly and, no matter the risk, ensure clear and understandable signage if appropriate and that, if necessary, barriers are in place.
Fences and gates
The case of Craig Anderson v John Imrie and Antoinette Imrie in 2017 is an important case which reinforces the requirement to keep gates and fences maintained and secured in a way that they cannot be opened by children or animals.
Mr and Mrs Imrie were sued for breach of their duty of care as occupiers when a young boy was seriously injured on their farm after being crushed by a heavy gate which was secured only by a chain or rope.
Mrs Imrie was found to be in loco parentis – she was aware that the farm was a dangerous place for children and she should have foreseen that the boy could get injured if he was not adequately supervised and if he interfered in some way with the gate. Mrs Imrie was found to have failed her duty of care and ordered to pay £325,976 in compensation. Our full article on the case can be found here.
This case highlights how important it is in the rural sector generally to take steps to keep property or land adequately secured, maintained, and repaired. Measures that can be taken may include putting relevant warnings or protections in place, carrying out risk assessments, and checking the condition of fences and gates – ensuring where possible that gates are secured in a way that means they cannot be opened by animals or children.
Each case turns on its own facts and circumstances, and we recommend seeking appropriate advice as to the duty that may apply in your specific circumstances. Having occupiers' liability insurance in place is also crucial.
Legal implications
Failure to meet the obligations under the Occupiers' Liability (Scotland) Act 1960 can result in legal action if a visitor suffers injury or damage due to the occupier's negligence.
Alongside damages being sought by injured parties (which may be significant), the reputational damage of an injury taking place on your land cannot be underestimated.
Conclusion
Farm Safety Week is an opportune time for those in the rural sector to review their responsibilities under the Occupiers' Liability (Scotland) Act 1960. Ignorance is not a valid defence, so knowing your responsibilities as an occupier (and seeking legal advice on these) is crucial.
By carrying out risk assessments, and understanding and implementing necessary and reasonable safety measures, occupiers of rural land can protect themselves and their visitors and ensure a safe rural environment for everyone using and accessing the land.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.