What is an occupiers' liability claim?
This is a type of personal injury claim that arises when an accident occurs on somebody else’s property or land. In Scotland, the Occupier’s Liability (Scotland) Act 1960 (the 1960 Act) applies. It sets out the duty of care owed by occupiers to persons entering their land. An occupier requires to take reasonable care to ensure that a person will not suffer injury or damage by reason of any danger on their premises.
Who is an occupier?
An occupier is the person who has sufficient control of the premises, regardless of ownership. There can be more than one occupier at the same time, such as a landlord and tenant, or multiple tenants responsible for different areas.
When would an occupier be liable?
Under the 1960 Act, an occupier can be liable when:
- A visitor suffers injury or damage
- The injury or damage results from the state of the premises (or things done or not done on the premises)
- The occupier failed to take reasonable care to prevent that injury
Reasonable care includes:
- Ensuring the property is safe for use
- Addressing known hazards or giving adequate warnings
- Maintaining the condition of the property
Considering risks posed by ongoing work or temporary hazards
A higher standard of care may be required for children or vulnerable individuals. If a visitor has been warned of a danger and understands the risk, the occupier may not be liable under section 2(3).
Can you contract out of occupiers’ liability?
The 1960 Act does not allow an occupier to contract out of occupiers’ liability. The duty imposed by the Act cannot be excluded or modified.
Shea John Ryan [2025] FAI 31 – An example of an occupier’s duty of care
A recent fatal accident inquiry (FAI) highlighted issues around safety on building sites. It examined the circumstances leading to the death of a child, Shea John Ryan. Although not an occupiers’ liability case, the court’s analysis is relevant, particularly regarding precautions to prevent unauthorised access.
Facts of the case
On 16 July 2020, Shea Ryan climbed through an unsecured fence on a building site in Drumchapel, Glasgow, and accessed a manhole shaft (MH22) near a playpark. He climbed down a ladder within the shaft and slipped, falling around 20 feet to the bottom, where he suffered fatal injuries.
Amey Black & Veatch (Amey) had been working on the site and transferred it to RJ McLeod (Contractors) Ltd (RJ McLeod) in early July 2020. Read more here.
Legal and Safety Findings
RJ McLeod admitted breaching health and safety laws and was fined. The site was criticised for inadequate safety measures.
The court found the cause of the accident was avoidable and identified five reasonable precautions that could have prevented the incident. These are useful when considering whether reasonable care has been taken under occupiers’ liability.
Failures included:
- Inadequate perimeter fencing and poor maintenance
- Lack of inspection and maintenance of the manhole cover (MH22)
- Poor communication between principal contractors during the transfer of control
- Lack of documented reporting of damage and unauthorised access
- Insufficient consideration of the site’s proximity to a children’s playpark
Considerations
Although this was an FAI, it provides a helpful, though not exhaustive, list of measures an occupier may choose to implement. With hindsight, we can identify the types of danger occupiers should consider.
Where more than one occupier or contractor is involved, they should communicate openly about hazards and the measures required to eliminate risks to those lawfully entering the premises. When control transfers, information about previous incidents and known risks should be shared.
If you have control of a construction site, consider what measures are in place to control the risk of unauthorised access and minimise the likelihood of injury. The surrounding area should be assessed to identify foreseeable risks. Reasonable and sufficient precautionary measures should be implemented. This reduces the risk of incidents and ensures compliance with obligations as an occupier and under the CDM Regulations.
