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Limits to your liability for outside spaces

Many businesses within the retail or leisure industry will own or control outside spaces in addition to their more obvious internal premises but when are you liable for ensuring that the outside spaces you own or control are safe? You may assume that the answer is always but in fact the law is not so straight forward. It is therefore sensible to consider the use of the space and the control of the area in the round when faced with any public liability claim arising from use of any outside area.

Contractual indemnity

In a scenario such as a retail park individual businesses may rent the physical buildings but the car parks and outside spaces often remain with the landlord, and a right of access is simply offered to the tenants and their visitors. As such if faced with an accident in such a space it is always worth considering the terms of the lease to assess the duties to inspect and repair outside spaces. It may be possible to redirect any trip or fall to the landlord if they have failed to repair a hazard and they hold the responsibility for maintenance of outside areas. This may well be the case even if the issue has not been previously reported by the tenant as communal areas would not require the tenant's permission for access in order to inspect.

Border line

Where someone falls near the entrance to your premises always double check that they actually fell on your land. Sometimes Claimants will make assumptions about where the boundary line is between landowners and so it is always worth checking the land registry documents once you have a clear indication of the exact accident location. You may find that actually the Claimant tripped on a public highway or neighbours property even if they landed in your premises. Similarly however it is always sensible to remain aware of your own responsibilities. We have seen many instances where landowners have been caught out because they did not realise that a particular strip of land actually belonged to them so always double check to be safe!

When is a visitor not a visitor?

This may seem like a rhetorical question however you need to be aware that if someone is present on land by right, they will not class as a visitor for the purposes of occupiers liability. Practically this is relevant when dealing with public rights of way because people can access the same without permission. If a path is a public right of way an occupier is not responsible for any issues of non-feasance, only malfeasance. In layman's terms this means that you are only liable for hazards that you create, not for any that are created by a failure to undertake maintenance or repair work. As such this provides a useful defence when faced with a claim arising from potholes and the like.

The obvious scenario where this may arise is if your business abuts the public highway and in fact your land ownership extends into part of the pavement area by way of perhaps a cellar underneath. I am sure we have all seen the typical situation where there may be a change of material part way into what appears to be the pavement or seen the glass type blocks used to provide cellar light to the space below. In these scenarios the users of the highway will often walk over each part of the footpath indiscriminately without considering that there may be a change of ownership, and the area has become part of the right of way over time.

You may think that you do not have any obvious rights of way running over your land but it is important to remember that it is not always as clear cut as the scenario discussed above. To be a public right of way land does not have to be a designated footpath maintained by the council, and marked on their designated map. Land can become a public right of way over time if it is designated as such and this means that you need to consider the following types of issues:

• Have the landowners either said something or acted so as to lead the public to infer that they should have a right of passage over the area?
• Do the public use it like a highway?
• Does the relevant area have the physical attributes of a highway?
• Did the landowners have the intention to dedicate the path as part of a highway?

In law an area can be presumed to be dedicated as a public highway if it can be shown that there has been unrestricted access over a period of 20 years under a legal doctrine called prescription. You do not however have to show 20 years use. If there is dedication and acceptance, a highway is created regardless of the time, though it will usually be easier to show a pattern of usage for the purposes of proving acceptance if the path has been in place for a while. In the case of Young v Merthyr Tydfil [2009] PIQR P23 a bridge in a newly created park was deemed to be a public right of way when it had been in place for almost 4 years.

As such it is possible to raise these arguments even where there has not previously been a formal decision that the land constitutes a public right of way. As a result we have seen this argument raised successfully where a path ran down the side of a shop primarily for access to the rear of the store. It however provided a route to the next street and so over time was used by shoppers as a short cut. It has also been used successfully by a manufacturer where a cyclist used a track that passed through their land and he sustained serious leg injuries when his foot struck the edge of a sunken concrete trench.

McGeown v Northern Ireland Housing Executive [1995] 1 A.C. 233 HL is probably the most reported case involving this doctrine of recent years. In that case the defendant, who owned a housing estate, successfully defended the claim of someone who fell on a footpath running through the estate. There is no reason why the same scenario could not arise in a retail or industrial park setting if the route allows access beyond just visiting your premises though.

Conclusions

Does all of this mean that you can escape all responsibility for upkeeping external areas? Realistically no. Some areas of outside land may well be within your business' ownership and control, and not realistically form part of a public right of way such as a self contained car park for example. In those scenarios an occupier's duty of care will still arise and so potentially liability for defects that develop. The other consideration is that whilst the above may create a defence to public liability claims, they will not necessarily form a defence for an employers liability claim. As an employer you will retain a duty of care to provide a safe working environment to staff and so if they are required to access these outside areas as part of their duties to collect deliveries, round up and order trolleys or assist customers etc then you may still face liability should they be injured by a defect that you have not addressed. As such, if it is possible it is still advisable to undertake regular inspections of areas that you own or control, and to take suitable steps to control any hazards that arise. It is however worth being aware of the potential defences you may have available should a claim arise.

For more information contact Claire Opacic in our Insurance department via email or phone on 01618308817. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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Product Liability for Retailers