Public Entertainment Hidden Risks for the Land Owner
July 2004
One of the north’s leading law firms has warned of the hidden risks that face land owners who allow their property to be used for public entertainment and events.
David Taylor, Partner at Crutes Law Firm, this week set out what land owners and occupiers should be aware of in the run up to the summer festival and event season.
Many areas of open land in towns and cities are under the control of the local authority. Particularly in summer, such sites may be popular venues for public entertainment of a variety of kinds.
David said: “Any council refusing permission for the use of their land, without very good reason, is liable to be portrayed as 'Scrooge' – but what are the legal and insurance risks of inviting the public at large to come and enjoy some traditional or revolutionary new form of entertainment on your land?
“The obligation to take reasonable steps to ensure the safety of lawful visitors has been enshrined in Acts of Parliament for nearly fifty years. Inviting anyone onto your land carries potential consequences and in this increasingly litigious society, authorities have already had good cause to think twice about restricting access if the safety of sites could not be controlled.
“Children's playgrounds are perhaps the best example of facilities which have actually been withdrawn despite the investment of significant funds in the provision of equipment when the difficulty of maintaining those sites in a safe condition has proved a magnet for claims.”
It has been recognised for many years that if a defect lurks on your land, then you may well be responsible if a visitor is injured. Attempts to limit that liability on the basis that people enter at their own risk became futile more than twenty-five years ago when legislation outlawed clauses excluding liability for personal injury or death.
There still remains the possibility of a suitably drawn clause passing responsibility to the organisation who hires the site for their event. If a problem is a consequence of the occupiers' neglect the reasonableness of passing the buck may have to be justified in court. The respective bargaining power and standing of landowner and the hirer will be a major factor in influencing the outcome.
David added: “Prudent authorities will have acknowledged for many years that these consequences cannot easily be avoided. Requests for use of land can be difficult to refuse and refusal can be very difficult to justify publicly.
“Responsibility for the safety of the site is now widely accepted as one of the natural consequences of land ownership. However, what responsibility does the owner or occupier bear for the entertainment to be provided?
“The case of Bottomley -v- Todmorden Cricket Club illustrates the extent of an occupier's potential liability. The Club allowed a pyrotechnic display to take place on its land. Such an activity was, by definition, dangerous, involving the use of gunpowder.
“Any firework display would have those characteristics. The Club apparently stood to benefit from this annual fundraising event, but the judgment does not suggest that this was a material factor.
“The organisers, who had obtained the Club's permission to use their land, invited Mr Bottomley to assist in putting on the display. He did so voluntarily. Unfortunately, whilst placing a gunpowder charge into a mortar tube filled with petrol, the contents of the tube ignited prematurely, exploding in his face and causing severe burns and a broken arm.
“The organisers did not possess public liability insurance cover, so the injured party sued the Club on the grounds that it failed to take reasonable care to select a reasonably competent stunt operator and that it failed to ascertain whether the stunt operator carried adequate insurance.
“The Club argued that it did not owe any duty to the Claimant, who was an agent of an independent contractor, who had come onto their land to carry out the contractor's purposes.
“The court found that the Club had allowed a dangerous event to take place on its land with no public liability insurance and no written safety plan, because it neglected to take the ordinary precautions it should have taken. That justified an award of damages.”
David believes there are lessons to be learned from this.
He said: “It is not sufficient simply to provide entry to land free from structural defect. The occupier has duties to ensure the safety of the activity he is inviting people to attend.
“That duty will apply even though the occupier has no material involvement in the provision of the entertainment which attracts the visitors. The occupier has a duty to participate in the planning of the entertainment, to minimise or eliminate risks to the public.
“That duty will be much higher if the entertainment carries extra hazards not normally associated with a gathering of a large group of people in a single area.
“If the occupier is looking to the person or organisation arranging the event to take responsibility for any unfortunate accidents which may occur, then failure to ensure that organisation has adequate public liability insurance may itself be regarded as a reason for holding the owner or occupier legally liable for injuries which cannot be compensated by an uninsured hirer.
“Some of these requirements would no doubt have been followed by any prudent authority alert to its health and safety responsibilities, irrespective of potential insurance claims.
“However, the imposition of liability for someone who was not simply an innocent visitor but was actively involved in the organisation of the event and the obligation to check that insurance was taken out for the event do open up potential areas of responsibility which not every council may have contemplated previously when authorising some harmless temporary entertainment on one of their sites.”
* David Taylor has been a Partner with Crutes since 1987. He specialises in civil litigation with particular emphasis on personal injury claims primarily for defendants, employers’ liability, public liability and motor liability. He has had a substantial amount of experience of handling a large volume of claims on behalf of local authorities under Employers’ Liability and Public Liability Policies.
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