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National Caving Association

NCA's Legal and Insurance Committee have issued the following comments on the Occupier's Liability Act (1957).  It should be pointed out that these notes are intended for guidance only and do not represent an authoritative statement of the legal position. Whilst they have been prepared in good faith, no liability can be accepted for their contents.

Comment from the Legal and Insurance Committee, No.1 May 1978

OCCUPIER'S LIABILITY ACT

This Act has been around since 1957 so it is not a new development. The only change over the years has been that court cases have considerably extended a landowner's duty to care for people who are on his land.  But, basically the effect of this act is as follows:-

1.                  A landowner has a duty of care to people who are on his land (with or without his permission). So, if someone is injured as a result of a failure by the landowner to observe this duty of care then the injured party would be able to successfully claim damages from the landowner.

2.                  It is difficult to say with certainty what docs constitute a failure of a duty of care since this is something the court would decide based on the doctrine of ‘reasonableness’ and also considering all of the facts of the case.  So, it is not possible to give a yes/no answer as to whether a certain set of circumstances would give rise to legal liability.  What follows is an interpretation of the view a court might take.

3.                  A landowner with a cave on his land is unlikely to be legally liable following an accident to a caver underground.  This is because a court would probably accept the view the caver went underground knowing that it was a hazardous undertaking and there would be nothing the landowner could do to make the cave safer because the caver by going underground had agreed to descend the cave as he found it (hazards and all).

4.                  Alternatively, if a landowner diverted a stream down a cave after one had descended with the landowner’s knowledge and an accident occurred as a result, then the landowner would probably be liable.  It is suspected that in those circumstances he might be criminally liable as well.

5.                  In cases where an organisation agrees to administer access to a cave for the landowner, then if the access agreement requires the organisation to keep the cave locked, failure to do this could render the organisation liable as well.

6.                  This could happen if the cave entrance was left unlocked by someone (a non-caver) fell down, was injured, sued the landowner and was awarded damages.  The landowner could then sue the organisation in charge of access for negligence in allowing the entrance to be left open.  The organisation would have to show in defence that it had taken all reasonable steps to show that the cave remained locked. If it were able to do this then it might escape liability which would leave the landowner footing the bill for damages.

7.                  It is because of this possibility that most landowners when granting access to a cave to an organisation usually try to protect themselves by the following:-

a.                  including a clause in the access agreement that requires the organisation to indemnify the landowner in the event of someone successfully claiming damages against the landowner.

b.                  requiring the organisation to take out an insurance policy which would enable the organisation to pay the landowner in the event of this happening.

c.                  require the organisation to ensure that all cavers descending the cave have signed an indemnity chit which, prior to the Unfair Contracts Terms Act, would probably have prevented cavers form successfully suing the landowner.

Unfair Contract Terms Act.

The effect of this is to render indemnity chits in effect is preventing a person suing for damages for personal injury or death.  It does not make them illegal; it just makes them a waste of time, since they have no legal effect.  Now, this is not the disaster it might at first sight seem to be.  Indemnity chits are only effective in preventing someone who has signed one from suing.  In the case of an access agreement the only people who would sign an indemnity chit would be cavers.  These are the people who would have the most difficulty in successfully suing a landowner for damages following an accident in a cave (see 3 above).  It is highly unlikely that non-cavers would sign an indemnity chit before falling down a cave!  So, since the people who are most likely to be able to sue a landowner are highly unlikely to have signed indemnity chits, the fact is that indemnity chits are now ineffective hardly alters the landowner’s liability or risk of being sued.  So, the net effect of the Unfair Contract Terms Act might be to cause the disappearance of indemnity chits.