TRESPASSERS
~ Occupiers’ Liability ~
The Occupiers’ Liability Act 1984 governs the duty owed by occupiers to trespassers. The duty is narrower than under the 1957 Act.
1. Occupier
An occupier is anyone with sufficient control over the premises (Wheat v E Lacon & Co Ltd [1966]). Control, not ownership, is decisive. Multiple occupiers are possible.
2. Premises
Includes land and fixed or moveable structures under control (s1(2)). Aircraft and equipment may qualify (Fosbroke-Hobbes v Airwork Ltd [1937]; Wheeler v Copas [1981]).
3. Who is a Trespasser?
A trespasser is someone who enters without permission or exceeds it (Robert Addie & Sons Ltd v Dumbreck [1929]). Historically no duty was owed beyond avoiding deliberate harm (the case of Addie).
A duty of “common humanity” was recognised where danger and likely trespass were known (Herrington v British Railways Board [1972]).
A claimant injured due to misuse rather than the state of the premises will not succeed (Keown v Coventry NHS Trust [2006]).
4. When Does the Duty Arise? (s1(3))
A duty arises only if:
Section 1(3)(a): The occupier knows or ought to know of the danger (Rhind v Astbury Water Park [2004]).
Section 1(3)(b): The occupier knows or has reason to suspect trespassers may be nearby (Higgs v Foster [2004]).
Section 1(3)( c): It is reasonable in the circumstances to offer protection.
5. Scope of the Duty
Injury must be caused by the state of the premises (s1(1)(a)): No liability where injury results from obvious risk or claimant’s own actions (Ratcliff v McConnell [1999]).
Practicality of precautions is considered; courts avoid imposing excessive burdens (Tomlinson v Congleton BC [2003]).
Reasonable care is required, not absolute safety (s1(4)). Warnings may discharge the duty if sufficient (s1(5)).
