Occupiers Liability Act 1984?
Property owners may be under occupiers liability if someone is injured on their premises even if that person does not have permission to be there.
It has long been established that property owners who fail to keep their visitors safe may be liable for the personal injuries their visitors suffer as a result. However, property owners historically were not responsible for the injuries sustained by trespassers.
The Occupiers Liability Act of 1984 reverses this position. Property owners now may be liable for the safety of trespassers in some circumstances.
What is a trespasser?
By law, a property owner has the right to decide who enters their property and who stays out. Anyone who enters another person's property without permission is defined as a trespasser.
It does not matter if the person entering remains on the property or simply passes through it. It also does not matter whether that person deliberately breaks into a property, such as smashing a window, or mistakenly enters unfenced land. If permission is not given, the person is a trespasser.
When is a property owner responsible for trespasser safety?
A property owner, tenant or manager may be responsible for the safety of a trespasser on their premises if it can be shown that the property owner has a "duty of care" towards that person. A duty of care may arise if:
- the property owner is aware of a danger on their property
- the property owner knows or reasonable suspects that a trespasser may come into contact with the danger
- the risk of harm is one that the property owners should reasonably protect the trespasser against in all the circumstances.
One test that may be applied is "reasonable foreseeability." If the property owner knows, or could reasonably foresee that a particular type of accident may occur, then he should take steps to remove the danger.
How should a property owner orotect a trespasser?
The property owner must take "reasonable" action to make sure the trespasser does not suffer injury while on the premises. That may be as simple as installing a fence around the property or erecting warning signs. The property owner does not have to physically remove the danger or repair his property to a safe condition.
Greater duty of care exists for children
Property owners owe a greater duty of care to children as children are more likely to participate in risky behaviour. The case of Young v Kent County Council demonstrates the point.
In this case, a 12 years old child used the flue of an extractor fan attached to the side of a school building to climb up onto the roof. He fell through a skylight and sustained personal injuries. The child brought a claim under the Occupiers Liability Act 1984.
The Court heard evidence that the skylight itself was brittle and inherently dangerous. Had the Council carried out a risk assessment, they would have realised that:
- the skylight posed a risk of injury;
- children were likely to climb onto the roof; and
- fencing off the area would have provided a low-cost solution to the problem.
The child was a trespasser and knew that he should not have been on the roof. Even so, the Court decided that the injury was reasonably foreseeable and the Council had a duty of care to stop children climbing up onto the defective roof. They were found to be 50% at fault for the accident and ordered to pay 50% of the compensation award.
Crucially, had the trespasser been an adult, he would have recovered nothing.