Occupier's liability to trespassers

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While it is generally accepted that a property-owner has to bear some responsibility for what befalls lawful visitors to his property, there are those who would deny that a property-owner has any duty of care to a trespasser at all. After all, I might argue, if someone creeps into my back garden in the dead of night, intent on burgling my house, why should I should care if he falls into the old, deep well that I allow to remain overgrown and concealed there? The problem with this argument is that 'trespasser' is a very wide category of person indeed. For example, a person who acciddentally strays onto my land while stumbling home from the pub is undeniably a trespasser, as is a child who climbs over my fence to retrieve a lost football. In general, the law of Tort does not concern itself with motive, and the fact that a person has entered my land accidentally does not stop his actions consituting a Trespass. In general, the law could, and does, impose a duty on land occupiers to take at least a minimum of care to ensure that unauthorized entrants on their do not meet with disaster. The standard of care owned to a trespassor is, unsurprisingly, lower than that owed to a lawful visitor, but it is not negligible.

The land occupier's duty to a lawful visitor is set out in the occupiers liability act (1957), while the duty to a trespassor is in the occupiers liability act (1984). In short, the occupier owes a duty of care under the 1984 Act if:

  1. the danger is reasonably forseeable, and
  2. the presence of the trespasser is reasonably forseeable, and
  3. the danger is one that the occupier ought reasonably to guard against.

The last point clearly allows a court a degree of lattitude in deciding cases. If the courts were to take a very broad view of what the occupier 'ought reasonably' to protect against, the occupier will be liable simply on the basis that both the trespass and the danger were reasonably forseeable. This reasoning led to concerns that the 1984 Act represented a 'trespasser's charter'. The House of lords decision in TomlinsonVCongletonBC2003 was therefore broadly welcomed as a reintroduction of common sense. However, in reality, very few claimants that pleaded the 1984 Act succeeded in their actions, even before Tomlinson.

Two other differences should be noted between the duty of care to lawful visitors and that to trespassers. First, the 1984 Act only applies to personal injury. The 1957 Act is not so limited. This means that, in effect, the occupier carries no liability for damage to a trespasser's property, however expensive. Second, the 1957 Act allows that a visitor may waive his protection under the Act by a clear disclaimer, subject to the provisions of the unfair contract terms act (1977). The 1984 Act makes no such statement. It is not entirely clear why a person is allowed to waive his responsibility to lawful visitors, but not to trespassors. It could be that, in practice, the 1977 Act would prevent any effective waiver anyway. Alternatively, the duty of care to a trespassor is so low that it would unjust to allow the occupier to lower it still further by a disclaimer. Another argument is that, while it would be possible to get a lawful visitor to express his agreement to the terms of a disclaimer, it is not clear how one would get a trespasser to do so. In any event, this subject has not been considered by a court, as far as I am aware.