What is an occupiers’ liability claim? 

Written by Ciara Roche

If you are injured in a public place which is owned or rented not by a public body, then you may be entitled to raise an action under the Occupiers Liability (Scotland) Act 1960. This act sets out the circumstances in which a person who occupied an area of land can be held liable for the injury, property damage or death to a visitor of the land.

This type of claim can apply to a stretch of occupied land or other premises, including a fixed or moveable structure, which includes any vehicle, vessel or aircraft.

What duty of care is owed by the occupier?

It is useful to note the statutory provisions which underpin occupiers’ liability. The Occupiers Liability (Scotland) Act 1960 section 1(1) explains that this act determines the care which a person who occupies or has control over land or premises is required to provide to any person entering the premises, in regards to any dangers on the premises or anything which is omitted to be done in respect of these dangers.

Section 2 of the act tells us that this care is required except where the occupier is entitled to, and does, extend, restrict, modify or exclude these obligations by agreement towards a person, where it ‘is reasonable to see that that person will not suffer injury or damage by reason of any such danger.’ In essence, the occupier owes a duty of care where it is reasonably foreseeable that harm would be caused to a visitor as a result of the occupier’s act or failure to act.

What do I need to prove in order to make a successful occupiers liability claim?

The essential factor that requires to be proved in order to make a successful occupiers liability claim is that the occupier was aware, or reasonably should have been aware, of the danger on their premises and that they did not take the reasonable steps to prevent harm or injury. It is not enough for a pursuer to say that there was a danger on the premises and as result they suffered injury or damage.

There are also a number of other factors which will be relevant to a court in an occupiers’ liability case, these include:

  • The nature of the danger;
  • The extent of the injury or damage suffered by the pursuer;
  • The probability of injury or harm;
  • The age of the pursuer;
  • Whether the pursuer was permitted on the premises.

As with any legal case, there are a number of defences which a defender may seek to make. The most notable are the defence of contributory negligence, meaning that the pursuer is partly at fault for their accident, and the defence of volenti non fit injuria, in other words the pursuer accepted the risk of injury. If a successful defence of contributory negligence is pled, then any damages awarded to the pursuer shall be reduced. If the defence of volenti non fit injuria is successfully pled, the occupiers’ liability claim as a whole may be unsuccessful.

Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including Occupiers’ Liability claims. We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [March 2024].If you require any assistance, please don’t hesitate to reach out to our dedicated New Claims team at 0141 331 6070.