In our recent webinar marking the 65th anniversary of the Occupiers’ Liability (Scotland) Act 1960, we revisited the core duties imposed on occupiers and how the law has evolved in practice. Although the Act itself is far from user-friendly in terms of drafting, it remains a foundational piece of legislation.
Defending any claim under the 1960 Act ultimately turns on the facts – and therefore on the quality of the available evidence. Courts carry out a detailed factual assessment of what was reasonable in the circumstances. That includes considering factors such as the foreseeability of harm, the nature of the hazard, and the specific vulnerabilities or behaviours of the person affected.
Occupiers need to be able to demonstrate not just what was done, but why it was done – and crucially, when.
Key practical steps to minimise risk exposure:
Risk Assessments
Ensure that risk assessments are current, tailored to the specific site and activity, and reviewed regularly – particularly after incidents, near misses, or changes in use or layout. Generic templates alone are rarely sufficient.
Control Measures
When selecting and implementing control measures, document the reasoning behind your decisions. Why was one approach chosen over another? Were alternative measures considered and rejected? These details can be essential.
Policies and Procedures
Keep clear records of inspection, maintenance, and monitoring routines. Detail who is responsible, what the procedures are, and how compliance is tracked.
Post Incident Actions
After any incident, swiftly and thoroughly record what happened. Take photos, secure any CCTV footage and inspection logs, take witness statements, record weather conditions and any other relevant communications. Capturing accurate facts early can often make the difference between a successful defence or liability attaching.
Understand Your Visitors
The standard of care owed can vary depending on who is accessing your site – children, older individuals, or unauthorised visitors may all warrant different considerations. Risk assessments should reflect these distinctions.
Ultimately, the most robust legal defences are built not with hindsight, but with contemporaneous documentation showing a proactive and reasoned approach. Those responsible for managing premises should continually ask: What risks exist? What am I doing about them? And how can I evidence that?
Missed our webinar?
If you would like access to the recording of our webinar, please contact Carly Forrest.
