Are you ready for a visit from Father Christmas?
Third party and occupiers’ liability is something which owners and occupiers of land and property should be aware of. Indeed landlords and tenants should see it detailed in their leases as one of the risks to be insured against, with most landlords expecting the tenants to cover the cost of such insurance.
This is because the legislation regarding occupiers’ liability is widely drawn to include liability for invitees and trespassers. The duty is to take such care as is reasonable in all the circumstances to see that a visitor will be reasonably safe in using the land for the purposes for which the visitor is invited or permitted. In addition, through conduct, a landowner may grant implied permission for someone to be on their land. Although the duty of care owed to trespassers is a lesser one than that owed to visitors, there is, nonetheless, a duty.
As the festive season gets under way, owners and occupiers should therefore be advised to start preparations early. Chimneys could be swept in advance and fires extinguished early in the day on Christmas Eve (with the hot coals and ashes being removed from the fire place). The roof could also be reinforced to withstand the weight of the sleigh and reindeers. Even if notices are displayed warning about potential risks and dangers at the property, the liability will remain and, given that liability extends to trespassers, occupiers erecting signage detailing misbehaviour in 2017 (and stating that they do not deserve, or require, a visit from the man himself) will not escape if Father Christmas is in a forgiving mood and decides to turn up regardless.
Depending how far into his merry round your delivery is (and whether you also intend to leave out some cheering refreshment) comfort may be taken from the case of Harvey – v – Plymouth City Council . In this case it was held that, although there was implied permission for the person to be on the council’s land, it did not extend to running across the property in the dark under the influence of alcohol.
However, owners and occupiers should remain vigilant as the decision does not lower the standards of care required by the legislation. Property should be inspected regularly and well maintained to try and avoid the risks of any accidents and/or claims arising. In addition, it is probably a good idea for everyone to consider the provisions of their insurance policies well before 24 December to check that they are indeed covered and that their gift list is not replaced with a claim for injury and/or damages!