• Farmers and landowners may have noticed an increase in the number of people accessing their land over the past few months.

    Lockdown restrictions and limitations on travel have meant more people are exploring their local area and enjoying the great outdoors on their doorstep.

    Are landowners liable?

    What if someone having a socially distanced walk with a friend on your land is injured by tripping over a protruding tree trunk or deteriorated pathway? Would you, as the landowner, be liable? Are you required to carry out regular checks on rights of way across your land?

    The short answer is no. The House of Lords (now Supreme Court) decided in the case of McGeown v Northern Ireland Housing Association (1994) that a landowner owes no duty under the Occupiers Liability Act 1957, in respect of nonfeasance, to maintain a public right of way passing over his land. In other words, allowing the path to naturally deteriorate is acceptable.

    On the other hand, there could be liability for misfeasance, for example, if a hole is dug in the middle of the right of way.

    Trespassers

    With people walking in their local area more than they may have previously, some may not be fully aware of the designated paths or be familiar with the area. This could see them trespass on to land. Where does the law stand on trespassers?

    There may be a potential liability under the Occupiers Liability Act 1984 (OLA) which states that an occupier of a property owes a duty to a person who is not a visitor (i.e. a trespasser) if he is aware of a danger or has reasonable grounds to know that one exists.

    Clearly the 1984 Act recognises it would be unfair to hold occupiers liable for injury to trespassers whom they do not know are present or are likely to be present.

    So, if you were the owner of private land and have had cause to stop people from entering the land, then this would arguably arm you with knowledge that, although not invited to be there and therefore they are not visitors, people are likely to trespass.

    The duty is to take care as is reasonable in all the circumstances. So, setting traps to ward people off would probably see you fall foul of the Act, as could unguarded machinery or defective premises.

    A High Court decision of Buckett v Staffordshire County Council (2015) dismissed a claim where a young boy who had trespassed on school grounds was injured when he jumped onto a skylight. Although it was foreseen that children were likely to trespass, the skylight’s “structure, makeup and location” did not constitute a danger.

    The case did highlight the importance of keeping good maintenance records because the Claimant in this case was unable to establish that the skylight was defective. Had he been able to do so then the duty arising under Section 1(1)(a) of the OLA would have likely been triggered.

    Further, there would unlikely be any liability for premises that were not dangerous in themselves but misuse by the visitor caused an injury. So, if a walker decides to climb a wall instead of using the gate right next to it then no negligence on behalf of the landowner should be found.

    Steps that landowners can take

    If you are aware of particular dangers on your land, such as poisonous berries that children might eat or deep ponds obscured by foliage, then the duty is to be specific with your warnings.

    A sign saying “Warning! Might be dangerous!” is unlikely to absolve you of liability for a danger you are aware of. Warnings must be specific and clear. So in our examples one would expect the poisonous berries to be fenced off with a sign saying “Poisonous – do not eat” and hidden dangers clearly highlighted.

    Finally, if you embrace the much-needed collective stretch of the legs post-lockdown and happily invite people on to your land, then your duty would be under the Occupier’s Liability Act 1957, which is 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 reason which he or she is invited or permitted to be there.

    Take particular note that the act specifically refers to children being less careful than adults and, as can be seen in the above examples, a good recorded system of inspection and maintenance and, if appropriate, adequate warnings assists in showing compliance with the Act.

    This article was first published in the April 2021 edition of South East Farmer.

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