Occupiers' liability - Breach of duty towards trespassers

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Overview

Occupiers' liability regarding trespassers is a key area of tort law important for SQE1 FLK1 exam preparation. This subject examines balancing property rights with safety duties, as defined by the Occupiers' Liability Act 1984. Reviewing this legislation, its historical context, and practical applications helps candidates develop the legal knowledge required for the exam. This in-depth analysis equips candidates to tackle complex scenarios and apply relevant legal principles effectively.

Historical Development and Legislative Framework

Common Law Evolution

The treatment of trespassers in English law has seen notable change. Historically, common law provided scant protection to unauthorized entrants, guided by the principle "a man's home is his castle."

A major shift occurred with British Railways Board v Herrington [1972] AC 877. This House of Lords decision introduced a duty of "common humanity" towards trespassers, especially children. Lord Reid emphasized that occupiers should consider the welfare of potential trespassers if aware of their likely presence and serious risk of injury.

Legislative Intervention

The Herrington case led to legislative action, resulting in the Occupiers' Liability Act 1984. This Act aimed to clarify the duty owed to trespassers, aligning property owners' rights with the safety of entrants.

Key features of the 1984 Act include:

  • Definition of the duty owed to trespassers
  • Conditions under which the duty arises
  • The extent and limitations of the occupier's responsibility

SQE1 FLK1 candidates should note that the 1984 Act operates alongside the Occupiers' Liability Act 1957, which applies to lawful visitors.

The Statutory Duty Under the 1984 Act

Section 1(3): Conditions for Duty

Central to the 1984 Act, Section 1(3) outlines when an occupier owes a duty to a trespasser. The duty applies if:

a) The occupier is aware of the danger or has reasonable grounds to believe it exists;
b) The occupier knows or reasonably believes a trespasser is near the danger;
c) Protection from the risk is reasonable in the circumstances.

Nature and Scope of the Duty

Once duty is established, Section 1(4) requires the occupier to take reasonable care to prevent injury to the trespasser. This standard is lower than that owed to lawful visitors under the 1957 Act.

Factors affecting the reasonableness of the occupier's actions include:

  • The premises' nature
  • The degree of danger present
  • Cost and practicality of preventive measures
  • The age and capacity of likely trespassers

Defences and Limitations

The Act offers several defences and limitations:

  1. Warnings: Section 1(5) states a warning may suffice if it reasonably ensures the trespasser's safety.

  2. Assumption of Risk: The principle of volenti non fit injuria might apply if a trespasser willingly accepts a known risk.

  3. Contributory Negligence: The Law Reform (Contributory Negligence) Act 1945 allows for a reduction in damages if the trespasser's own negligence contributed to their injury.

Landmark Cases

Tomlinson v Congleton Borough Council [2003] UKHL 47

This significant case shaped the application of the 1984 Act. The House of Lords ruled that the council was not liable for injuries when a trespasser dove into a shallow lake, emphasizing the Act does not eliminate all risks.

Key points:

  • The duty does not extend to obvious dangers
  • There is no obligation to prevent self-imposed risks

Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39

This case clarified the limits of an occupier's duty. The Court of Appeal found the NHS Trust not liable for injuries when a child climbed onto a hospital roof.

Important aspects:

  • Reinforced that occupiers need not protect against all risks
  • Highlighted the significance of the trespasser's age and capacity

Bourne Leisure Ltd v Marsden [2009] EWCA Civ 671

This case addressed the adequacy of warnings. The Court of Appeal ruled that visible signs warning of sea dangers were adequate to fulfill the occupier's duty.

Notable points:

  • The effectiveness of warnings depends on visibility and clarity
  • Sign placement and relevance are vital in determining liability

Practical Applications and Risk Management

Understanding occupiers' liability toward trespassers is vital for risk management. SQE1 FLK1 candidates should be ready to apply these concepts to varied situations.

Example 1: Abandoned Industrial Site

An abandoned factory has hazardous machinery and unstable structures. Local youths frequently enter the site for recreation.

Analysis:

  • The occupier likely knows of both the danger and trespassers
  • Reasonable steps might include fencing the perimeter, posting clear warnings, inspecting hazards, and engaging with community groups to deter entry.

Example 2: Private Swimming Pool

A homeowner has an unfenced pool visible from a public path. The gate is often left open.

Analysis:

  • The pool might attract children
  • Precautions could include securing the pool with fencing, ensuring gates lock automatically, and posting warnings about swimming dangers.

Example 3: Construction Site in Urban Area

A high-rise construction is underway in a busy area. People have attempted after-hours access.

Analysis:

  • The dangers and likelihood of trespassers are known
  • Measures might include security patrols, CCTV, anti-climb barriers, safety checks, and community education on the site's dangers.

Conclusion

The law of occupiers' liability for trespassers involves a combination of statutory rules, case law, and practical elements. SQE1 FLK1 candidates must show a clear understanding of the Occupiers' Liability Act 1984, interpret landmark cases, and apply these to real-world scenarios. Remember:

  1. The duty arises under specific conditions of Section 1(3).
  2. The standard is lower than that owed to lawful visitors.
  3. Not all risks require elimination, especially obvious ones.
  4. Clear, visible warnings can be an effective defence.
  5. The age and capacity of likely trespassers are key considerations.