Occupier's liability: where do you stand or fall?
Casualty Aware 2
Occupier’s liability claims are not always straightforward and the road toward a proper conclusion is often littered with many potential obstacles to trip the unwary.
The introduction of the new PL protocol planned for July 2013 will reduce time limits for responding to claims and is likely to place pressure on handlers and insureds. It remains to be seen whether the introduction of QOCS will lead to more claimants ‘chancing their arm’ on the basis that, except in very limited circumstances, they will face no liability for defence costs.
Be alive to the ‘chancer’
Are you satisfied the accident happened as alleged? Are there any independent witnesses? Do the medical records support the claimant’s case?
Initially it needs to be determined who, if anyone, had a responsibility to maintain the accident locus. The notion that there are roads which no party has a legal duty to maintain is not as counter-intuitive as may first appear (more on this point later).
When a claimant falls their first port of call will usually be the highway authority for that area. In general, liability can only attach to a highway authority in relation to roads ‘maintainable at the public expense’. Whilst highway authorities should keep a record of all such highways within their area, records are not always definitive. A brief outline of the legal position in relation to the creation of highways is therefore necessary.
There are two principle ways in which a highway may be created; the first and most common of which is by statute. The current provisions are contained in Highways Act 1980 s24. Such highways are maintainable at the public expense.
The other way is by common law. This involves the dedication by a landowner of a public right of way across his land and the acceptance by the public of that right of way.
Because dedication may have taken place in excess of 100 years ago, evidence to prove the dedication will often not exist. Section 31 of the Highways Act (1980) therefore provides that if the public has been using the land as a right of way for at least 20 years there is a rebuttable presumption that there was an original act of dedication. The courts have held at common law that, on occasions, a period of less than 20 years will suffice.
In order for a highway to be maintainable at the public expense the highway authority must have subsequently adopted it. The absence of adoption therefore creates the concept of a public highway not maintainable at the public expense.
It is important to understand this distinction when, in the course of defending a claim, you are seeking to pass liability to the highway authority. Unless created by statute, or adopted by them, a highway authority is not liable for any failure to maintain a public road.
The concept of a public right of way also has implications for private landowners. They owe a duty both at common law and under s2 (2) of the Occupiers Liability Act (1957) to those entering their premises to keep them reasonably safe for the purposes they are permitted to be on the premises.
By way of example; you are presented with a claim from a lady who has fallen in a pothole outside your insured’s shop. The insured have been trading from those premises for 25 years and the area where the claimant has fallen forms part of the property. The pothole appeared following a cold winter five years ago and has got deeper with time. The insured have done nothing to repair or barrier off the pothole.
Your initial view is that the insured has clearly been negligent and in breach of the Occupiers Liability Act 1957. Before you write to the claimant’s solicitors with your admission of liability think again; you may be making the correct decision but there is another critical point to consider.
The insured’s premises are one of a row of shops all with similar frontages and no dividing wall between the shops. Members of the public may therefore be walking past the front of the shop on their way to another destination. The insured’s frontage may therefore be part of a public right of way.
It is a long established principle arising from Gautret v Egerton (1867) that if land is subject to a public right of way then the landowner is not liable for negligent non feasance. This principle was confirmed more recently by the House of Lords McGeowen v Northern Ireland Housing Executive (1994). Put simply this means that if a landowner fails to comply with their legal duty to maintain and repair land (negligent nonfeasance) there will be no liability if the land is a public right of way. However, if the landowner does carry out any work on the land and doesn’t do it properly then there will be liability on the landowner (a concept known as misfeasance).
If the accident locus is not a public right of way and the insured has a potential liability in negligence or breach of the Occupiers Liability Act 1957, remember not all defects will give rise to a claim. A highway is not to be judged by the standards of a bowling green - Littler v Liverpool Corporation (1968) - and defects of less than one inch in depth will not generally give rise to liability.
Contributory negligence needs to be considered, however it also needs to be remembered that the courts view negligence as something more than inadvertence or a momentary lack of concentration and it is generally difficult to secure a reduction for this.
The vast majority of trippers and slippers are likely to fall (for once no pun intended) into the new sub £25,000 protocol. Think very carefully before raising contributory negligence just for negotiation purposes. Claims where contributory negligence is alleged will automatically fall out of the portal, potentially creating an increased liability for claimant’s costs greater than any saving in damages.
Applying the above principles should assist in defending those claims which should be on a road to nowhere.