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Injuries or accidents on ‘private’ land includes homes, shops, schools, for example. ‘Public’ land in this context is land owned by government or statutory bodies to which the public has general access (for example, public roads and parks).

Who Pays?

When someone is injured by something dangerous on a premises or property, the occupier is responsible. The occupier is not necessarily the owner. It is the person who has possession of the place, such as a person holding a lease. This person has the right to decide who to admit and who to exclude from the land or premises. However a landlord (who is the owner but not the occupier) owes a contractual duty of care to the tenant and their family. In some cases, someone other than the owner or tenant has been held by the court to be the occupier. For example, an independent contractor on a building site may be an occupier, depending on the facts of the case.

Tenants are responsible for injuries caused by defects in their rented premises even if the landlord is responsible for maintaining the property. All tenants should therefore take out contents and householders' insurance which must include cover for liability for dangerous premises.

The Occupier's Responsibilities

The liability of occupiers is determined by reference to the familiar concept of ‘negligence’. The categories of invitee, etc are no longer binding on the courts, but they are not completely irrelevant because a court must still consider the manner of the plaintiff's entry upon the land.

The rights of a person injured on another person's premises can depend on the circumstances under which the person came onto the land. The plaintiff will fall into one of several categories and rights may vary accordingly.

Court actions for damages against an occupier are usually taken in the Supreme Court. In almost every case it is necessary to have legal representation.

Liability of Public and Other Authorities

People who lawfully use facilities such as playgrounds and other recreational reserves, public toilets, airports and railway stations have certain rights. This is governed under Part 9 of the Civil Liability Act (ss36-43).

The Courts now use four factors in assessing liability (s38):

  • the functions required of the authority in relation to financial and other resources available;
  • the reasonableness of allocation of resources is not open to challenge by a plaintiff;
  • the whole range of functions required of the authority is to be considered, not just the particular activity concerned; and
  • the authority may rely on evidence of compliance with general procedures and standards of the exercise of its function to demonstrate the proper exercise of its function in the matter to which the proceedings relate.

So, for example, if a plaintiff brings an action in negligence for harm suffered due to a branch falling on them whilst walking on a council maintained walking track, the court will consider the four points above. If there is evidence of general lack of compliance with procedures, of excellent resources available, and a failure to discharge procedural requirements, then it may be that a court will find for a plaintiff.

However, think of a poorly funded council, that allocates a bulk of its resources to a more pressing issue, such as road maintenance, and complies with general procedures in all areas of its responsibility, including park maintenance, then the result would be different. It is a matter of circumstance.

Section 42 of the Civil Liability Act sets out a further provision that deals specifically with road work. It states that there is no liability for a a harm arising from a failure of an authority to carry out road work or to consider carrying out road work, where there is no actual knowledge on the part of the authority of the risk. Other protective provisions include section 39, where there is no duty of care owed to a person engaged in a recreational activity if the authority has warned of the risk (i.e. a sign pointing out a risk).

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