Liability to Trespassers

• The Occupiers’ Liability Act (OLA) 1984 applies to trespassers (people who have no permission or visitors who have exceeded the permission granted to them).
• A trespasser who suffers injury due to the state of D’s premises may be able to claim for personal injury (but not damage to property – s.1(8)). This reflects the view that trespassers are deserving of less protection than lawful visitors.
• Unlike the duty under the Occupiers’ Liability Act 1957, the duty under the 1984 Act is not automatic.
• Section 1(3) OLA 1984 provides that the occupier will only owe a duty to a trespasser if—

  (a) he or she is aware of the danger or has reasonable grounds to believe it exists;

  (b) he or she knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into the vicinity of the danger;

  (c) the risk is one against which, in all the circumstances, he or she may reasonably be expected to offer the other some protection.
• Both (a) and (b) are subjective, i.e. they relate to the knowledge of the Defendant. If the occupier is unaware of the danger or unaware that the person may come on to the premises, the Defendant owes no duty of care and the claim fails.
• The time of day and the time of year when the accident happened may be relevant for whether the occupier owes a duty of care. In Donoghue v Folkestone Properties (2003), the Claimant was injured when he dived into a harbour in the middle of a winter’s night. The occupier did not owe a duty as they would not expect that a trespasser might be present or jump into the harbour at that time of day or year.
• Note s.1(3)(b) refers to knowledge on the part of the occupier that the trespasser may come into the vicinity of the danger itself, not simply onto his or her land.
• The duty owed by occupiers to trespassers under s.1(4) OLA 1984 is:

  'to take such care as in all the circumstances is reasonable to see that [the trespasser] does not suffer injury on the premises by reason of the danger concerned.'
• The standard of care is objective. What is required of the occupier depends on the circumstances of each case. Factors to take into account include the nature of the premises, degree of danger, the practicality of taking precautions (including the financial resources of the occupier) and the age of the trespasser.
• Since most people would agree that a trespasser is not as deserving of

  protection as a lawful visitor, it is likely that in determining what amounts to reasonable care, the duty under the 1984 Act will be less demanding than that under the 1957 Act.
• The danger must arise due to the state of the premises and occupiers owe no duty to guard against obvious dangers.
• The approach does not significantly alter when a minor is involved. Premises that are not dangerous from the point of view of an adult could be dangerous for a child and whether they are is a question of fact and degree.
• Warning notices


  A warning sign can be an effective defence – s.1(5). It would have to make the danger clear, e.g. Westwood v Post Office (1973). So for a child trespasser it will depend on the age and understanding of the child.
• Contributory negligence


  This defence can apply to reduce the damages payable to the claimant by such proportion as the judge thinks appropriate to reflect the Claimant’s responsibility for his or her injuries.
• Consent (volenti)


  This defence is allowed if the trespasser appreciates the nature and degree of the risk, more than just its existence. It is a complete defence to the occupier.