The law is contained in the Occupiers' Liability (Scotland) Act 1960 ("Act") - which is, refreshingly, only five sections long. That said, there is a fair bit of case law to which reference also needs to be made when questions arise.
For these purposes premises are any land or other premises and they extend to any fixed or moveable structure including any vessel, vehicle or aircraft.
Who is an occupier?
An occupier of the premises in terms of the Act is anyone occupying or having control of land or premises.
This control test is applied by looking at factors such as who has authority to invite or exclude persons from entering the premises and / or who has the ability or responsibility for remedying defects in respect of the premises.
This definition of occupier would therefore capture the owner of the premises or a tenant who is responsible for the repair and maintenance of the premises under their lease. In certain circumstances, a landlord will be brought within this definition where the landlord has retained the maintenance and repair obligations and has not passed these on to the tenant. The landlord in this situation is not occupying the premises in any sort of traditional sense but would be considered the 'occupier' in terms of the Act.
Level of care required by an occupier
The Act obliges the occupier to take "such care as in all the circumstances of the case is reasonable to see that [third parties entering onto the premises] will not suffer injury or damage" caused by the state of the premises or by anything done or not done to the premises.
The duty is to take reasonable care - as opposed to strict liability. What is reasonable will depend on the facts and circumstances of each case but, generally, what is reasonable is assessed in line with what a reasonable person would have considered reasonable. If it is reasonably foreseeable that a certain danger to third parties exists on the premises, then the occupier will owe a duty of care in respect of this. Measures to protect third parties from the possible dangers that may exist on a property could include, for example, erecting 'Beware' or 'Danger' signs to bring their attention to any perceived risk, fencing off possible hazards (and maintaining such fencing) and regularly checking the condition of the premises and remedying any defects as soon as possible.
It's worth noting that there is a general presumption that the duty of care does not extend to natural features of the landscape. An occupier would, for example, not have to take measures to protect against the potential dangers that arise from every rocky slope, stream or other natural feature located on his premises providing it is attributable to the natural landscape. However, where any natural features of the land could be considered a hidden trap or danger, this will rebut the general presumption and a duty of care will exist.
In the 2013 case of John Cowan v Hopetoun House Preservation Trust for example, it was decided that where a third party had fallen 5 feet down an ha - ha (a deep hole designed to keep livestock out of a garden), this was an "unusual feature of a concealed nature" rather than "a well-established, permanent and familiar feature of the landscape" - and in such circumstances, a duty of care was owed.
Occupier beware….
It's clear that if you own premises or have responsibility for the repair or maintenance for any defects in respect of a property (even if you are not the day to day occupier), you could have a duty to prevent injury or damage to third parties who enter your premises.
If you think that something on your property could cause harm to anyone who enters your property, then it would be prudent to think "occupiers' liability" and to put in place whatever protections or warnings a reasonable person would consider required to prevent that harm occurring.
