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Trespassers and the Occupiers Liability Act 1984

The Occupiers Liability Act 1984 was introduced to provide protection for trespassers who were not lawfully visitors to premises. Under the Occupiers Liability Act of 1957 no duty of care was owed to trespassers.
The 1984 Act provides that the occupier of premises may find themselves liable to a trespasser (not being a lawful visitor) if it can be established that he did in fact owe the trespasser a duty of care.
Under section 1 (3) a duty will arise if the occupier is:
a) Aware of the danger or has reasonable grounds to believe that it exists,
b) Knows or has reasonable grounds to believe that the trespasser is in or may come into the vicinity of the danger; and
c) The risk is one against which, in all the circumstances of the case he may reasonably be expected to offer the other some protection.
If a duty is established, under section 1 (4) it will be a duty;
“… take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.”
Generally there are two factors to take into account. Firstly how serious is the risk of injury? The more significant and serious the danger the greater is the duty. Secondly who is likely to trespass? A child can reasonably expect greater care to be taken for his safety than an adult can.
In ‘Jolly v Sutton London Borough Council [2000] 3 ALL ER 409’ at first instance the Judge found the Defendant Borough Council was responsible under the Occupiers Liability Act for several spinal injuries suffered by the Claimant which led to paraplegia. The Claimant was injured when a small abandoned cabin cruiser which had been left lying in the ground of a block of flats owned by the London Borough Council fell on him as he lay underneath it while attempting to repair and paint it.
The Judge said that the type of accident and injury which occurred was reasonably foreseeable. He stated in general terms that the risk was that children, including those of the age of the Claimant, would meddle with the boat at risk of some physical injury. When the case went to the Court of Appeal, Sutton London Borough Council admitted that they were negligent in failing to remove the cruiser but the negligence had only created a risk of children being injured by rotten planks giving way beneath then and had not created a risk of an accident of the boat by the Claimant.
The Court of Appeal held that a finding or admission of want of care on the part of a Defendant established that it would have cost him no more trouble to avoid the injury which had occurred than he should have taken in any event. In those circumstances, the Defendant would be liable for the materialisation of even relatively small risks of a different kind.
Moreover, the ingenuity of children in finding ways of doing mischief to themselves or others should never be under estimated. For those reasons, in the instant case the Judge had been correct to describe the risk as being one that children would meddle with the boat at the risk of some physical injury.
Moreover, his observation that play could take the form of mimicking adult behaviour was a perceptive one, and he was justified in holding that an accident of the type which had occurred was reasonably foreseeable.
The House of Lords allowed the appeal.
In the case of ‘Tomlinson v Congleton Borough Council’ the Local Authority appealed against the decision that as owners and occupiers of a Country park it had a duty of care to the Claimant under the Occupiers Liability Act of 1984 and was liable for serious personal injuries that he had sustained when he dived into the shallow water at the edge of a lake and struck his head on the bottom.
The Claimant argued that the Local Authority had owed him a duty of care under the 1984 Act to take such care as was reasonable in all the circumstances to ensure that he did not suffer injury on the premises by reason of the danger concerned.
The House of Lords held that that the lake did not present risk due to the state of the premises or anything done or permitted to be done on the premises pursuant to section 1 (1) (a) of the 1984 Act. Accordingly there was nothing which gave rise to a duty on the part of the Local Authority.
Tomlinson was a person of full capacity who had voluntarily chosen to engage in an activity which had inherent dangers.
The decision in this case will impact on cases involving children. In the case of ‘Keown v Coventry Health Care NHS Trust’ the Claimant who was a child had been climbing the underside of a fire escape at the Trust’s hospital premises when he fell to the ground and was injured. The fire escape was on the top third floor of the building. It was part of the hospital grounds that were used by the public as a means of going between the streets on either side.
The Court of Appeal considered the case and acknowledged that premises that were not dangerous from the point of view of an adult could be dangerous for a child and whether they were was a question of fact and degree. However the Court said that it would not be right to ignore a child’s choice to indulge in a dangerous activity in every case merely because he was a child. The Judge in the case had found that the Claimant had not only appreciated that there was a risk of falling but also that what he was doing was dangerous and that he should not have been climbing the exterior of the fire escape.
In the circumstances it could not be said that the Claimant did not recognise the danger, and the risk arose not out of the state of the premises, which were as one would expect them to be, but out of what he chose to do. Therefore the Court held that the Claimant had not suffered injury by reason of any danger due to the state of the premises.
In the case of ‘Young v Kent County Council’ the Claimant was a 12 year old child who climbed on to the roof of the school buildings using the flue of an extractor fan attached to the side of the building. He then fell through a sky light on the roof.
The skylight was brittle and a Health and Safety Executive report indicated that there had been a problem with access to the roof prior to the accident.
The Claimant was a trespasser and brought a claim against the Council alleging breach of the Occupiers Liability Act 1984.
The Judge held that the state of the premises had been inherently dangerous to a child, particularly given the brittle nature of the skylight and the danger posed a risk of injury to a none visitor. Even though the Claimant had known that it was wrong to go on to the roof and had probably known that it was dangerous the Judge held that he was probably unaware of the fragility of the skylight.
The Council would or should have known that children were likely to climb the flue on to the roof and there was a low cost solution to the problem. Any school should have carried out a risk assessment and the failure to fence the area off had been negligent. There was a duty of care to ensure that none visitors did not get on to the roof and there has been a breach of that duty under the Act.
The Judge held the Council were in breach of the Occupiers Liability Act of 1984. The Judge in his comments said that if the Claimant had not been a child he would have recovered nothing. The Claimant was found 50% at fault and his damages were reduced by 50% for contributory negligence.
Property owners should therefore carry out a regular risk assessment of their property and if they find any defects which would be dangerous to trespassers they should take steps to avoid trespassers coming into contact with the defect. A duty is more likely to be found to have been breached under the 1984 Act if the Claimant is a child. Specialist advice should be sought from a health and safety advisor. This article is intended to give guidance and not legal advice and specialist legal advice should be sought in all claims or incidents. The cases generally do turn on their own facts and no one case will be the same.
Matthew Winder is a Senior Litigator member of the Association of Personal Injury Lawyers and based at our Lancaster, Kendal and Barrow offices.
10th March 2015

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