Developments in the Law of Occupiers’ Liability and Its Effects on Recreational Users
of Certain Classes of Land
In 1998, the provincial Legislature passed amendments to the Occupiers Liability Act, R.S.B.C. 1996, c.337. These amendments should have significant effects on the ability of recreational enthusiasts to access particular classes of land for their activities. They also provide more protection from liability to occupiers for accidents that may occur on their premises as a result of those recreational activities.
The Former Legislation
Section 3 of the Occupiers Liability Act, R.S.B.C. 1979, c.303, and of the new Act, before it was amended, imposed a duty of care on occupiers of property “…to take the care that in all the circumstances of the case is reasonable to see that a person, and that person’s property, will be reasonably safe in using the premises.” An occupier was required to exercise reasonable care to avoid dangers arising from the condition of the premises, activities on the premises, or the conduct of third parties on the premises. This duty was imposed on all occupiers and was owed to all persons who entered their premises, with the exceptions of those who willingly accepted the risks on their own, and trespassers who entered land used primarily for agricultural purposes. For those who fell into the exceptions, a lower duty of care was owed.
The standard of care imposed, under the former legislation, caused difficulties for occupiers with respect to recreational users of their property. In order to avoid liability for accidents occurring on their land, occupiers were required to prove that either: the recreational user was deemed to have accepted the risks that were “incidental to and inseparable from the sport”; or, the recreational user fully appreciated the risks involved, and expressly or implicitly agreed to release the occupier from liability for those risks. If either could be proven, they offered a full defence to the occupier.
Unfortunately, the case law surrounding the former legislation made it very difficult to establish that a risk was incidental to or inseparable from a sport or that a recreational user had agreed to release the occupier from liability for those risks. In most cases, the courts preferred to find the Plaintiff contributory negligent, thereby apportioning liability between the Plaintiff the occupier Defendant rather than giving effect to one of these “complete defences”.
Overview of the Amendments
Under the new Occupiers Liability Act and its amendments, certain users are deemed to have assumed the risks involved in using certain classes of land. These new “deeming” provisions have the effect of removing the problems previously encountered by certain occupiers in proving the full defenses.
Pursuant to the amendments, the duties remaining on occupiers of these classes of land are, firstly, not to create a danger with the intent to do harm to the person or damage the person’s property and, secondly, not to act with reckless disregard for the safety of the person or the integrity of the person’s property. It is, in fact, a negative duty being imposed on those occupiers, which provides them with more protection from liability.
To Whom Do the Amendments Apply?
The classes of land to which the amendments apply include: property used primarily for agricultural purposes, rural premises used for forestry or range purposes, rural land that is vacant or undeveloped, rural land that is forested or wilderness premises, private roads that are reasonably marked as such, recreational trails reasonably marked as such, and utility rights of way. The meanings of some of these terms have yet to be considered by the courts.
The amended provisions apply to both non-paying recreationists and trespassers, including persons on premises with the intention of committing a criminal act and those who are injured in the commission of a criminal act. The meaning of the term “recreationist” remains to be judicially considered.
Practical Effects for Recreational Users
The amendments to the Occupiers Liability Act lower the duty of care owed to recreational users of certain categories of property. An occupier’s duty, under the new legislative provisions, is only to ensure that it does not create a danger with intent to do harm to the categories of users listed above and that it does not act with reckless disregard to the safety of those users. As a result of the amendments, recreational users of land must be more aware of the risks involved in their recreational pursuits because they are now deemed to have willingly accepted those risks in many circumstances.
The positive effect for recreational users is that it will now likely be easier to convince occupiers of these classes of land to allow them to use their property for recreational activities, thereby providing for greater accessibility. However, if such a recreational user is injured, the amendments have the effect of making it very difficult to be successful in an action for damages against the occupier. It is likely that recreational users will feel that the positive effects of the amendments far outweigh the negative.