H418/02 - Trespassers and evaluation
Learn when an occupier owes a duty to someone without permission, how reasonable protection is assessed, and why the law gives visitors and non-visitors different protection.
Non-visitors and premises danger
A person without permission may still receive limited protection against a dangerous site.
A trespasser enters or remains without express or implied permission or another legal entitlement. They need not intend to trespass: someone who mistakenly takes an unpermitted shortcut can fall into this category. A visitor may become a trespasser by entering a prohibited area or undertaking an activity outside the permission. The Occupiers' Liability Act 1984 more broadly concerns people who are not 1957 Act visitors; it is not confined to deliberate intruders. Statutory countryside access has specific exceptions, and highway users are excluded from section 1's duty. The ordinary trespasser problems in this lesson concern neither of those special regimes.
The occupier is identified through sufficient control, just as for visitors. Section 1(1) concerns injury on premises caused by a danger due to their state or to things done or omitted there. A concealed shaft, unstable floor or live installation can fit. Before discussing a duty, identify the danger that actually caused the injury. The claimant's risky activity is not automatically a defect in the premises.
In Tomlinson v Congleton Borough Council (2003) an adult dived in a lake despite a prohibition and struck its ordinary sandy bottom. The House of Lords rejected the claim. Lord Hoffmann treated the injury as arising from the diving activity rather than a premises danger. Lord Hutton was prepared to treat the water as a premises condition, but concluded that protection against the obvious diving risk was not reasonably expected. These are alternative reasons supporting the same outcome; do not present every judge as taking an identical route. Read the judgment.
The distinction is fact-sensitive. Original example: climbing the outside of a sound stair tower is a chosen activity carrying obvious risk. Walking across a floor which hides an uncovered shaft raises a different premises danger. If a climber falls because a support unexpectedly collapses, examine the actual defect and cause rather than assuming that climbing defeats every claim. The 1984 Act imposes no universal guarantee, but trespass alone does not make a person an outlaw.
Three duty gateways
All three conditions in section 1(3) must be satisfied before a duty arises concerning the particular danger.
| Condition | What it requires | What is insufficient |
|---|---|---|
| Section 1(3)(a): danger | The occupier is aware of it or has reasonable grounds to believe it exists. | Merely owning land on which an undiscovered danger happens to exist. |
| Section 1(3)(b): entrant | The occupier knows or has reasonable grounds to believe a non-visitor is near the danger or may come near it. | A general possibility of trespass somewhere, without the relevant circumstances. |
| Section 1(3)(c): protection | In all the circumstances, the risk is one against which the occupier may reasonably be expected to offer some protection. | Assuming that the first two knowledge conditions make every risk protectable. |
The “reasonable grounds” wording allows inference from facts the occupier knows. Reports of children using a damaged fence beside a concealed pit can support both awareness of entrants and the need for protection. The Act is not the visitor Act's general obligation to make a permitted use reasonably safe. Nor does it impose a general duty to search the land for all unknown hazards. Read section 1.
The entrant condition depends on time and location. Donoghue v Folkestone Properties (2003), discussed in Tomlinson, involved a diver entering a harbour at night in winter. Knowledge of summer swimming did not establish reasonable grounds to expect the relevant presence in those circumstances. A season, opening time or pattern of access can therefore change the duty; “people have entered before” is an incomplete application.
For condition (c), consider the danger's seriousness and obviousness, the entrant's age and ability, and the burden of protection. An obvious natural risk freely encountered by an adult is different from a concealed lethal trap beside a route known to be used by children. In Tomlinson, knowledge that swimmers disobeyed the prohibition did not require the council to destroy the beaches to prevent an adult's chosen diving risk.
Original application: the owner of a warehouse knows a floor panel has been removed. Repeated camera footage shows teenagers entering that room through a broken door after school. A temporary secure door or cover is inexpensive. The known opening meets (a); the repeated room-specific footage supports (b); the hidden fall and easy precaution strongly support (c). If the only known trespass is on a distant path, (b) needs further evidence about the vicinity of this opening. If nobody could reasonably suspect the panel had been removed, (a) may fail.
Reasonable protection and breach
Once a duty arises, the occupier must take reasonable care against the identified danger, rather than prevent every possible trespass.
Section 1(4) requires reasonable care in all the circumstances to see that the non-visitor does not suffer injury on the premises by reason of that danger. The occupier's precautions must match the risk. A fence may be sufficient, but an occupier who knows it has a gap beside a hidden shaft cannot simply point to its original installation. Conversely, a properly maintained substantial barrier, without reason to expect it to be defeated, may be reasonable even though a determined adult finds a way around it.
Section 1(5) permits appropriate discharge of the duty through reasonable steps to warn of the danger or discourage incurring the risk. This wording differs from the visitor Act's requirement that a warning enable reasonable safety. A clear prohibition and an effective barrier may discourage a competent adult. A text-only sign may do little for a very young child. A sign which says “Private property” discourages entry but does not necessarily communicate a hidden, unusually severe danger. Assess what it realistically achieves in context.
Original example: an owner knows children regularly crawl through a hole in a fence beside a deep inspection trench. Repeating “Keep out” on the same distant sign is weak if the children cannot read it and the hole remains open. Securing that gap and covering the trench may be reasonable precautions. Change the facts to an obvious steep slope, a sound fence and an adult deliberately seeking a risky climb: demanding expensive reshaping of the land becomes far harder to justify.
As with visitor claims, breach must cause the injury and the kind of harm must be within the relevant risk. If a sound temporary cover would have prevented a fall, omitting it can be a factual cause. If the claimant was injured by a completely unrelated falling object, a failure to fence the trench does not alone establish this claim. The 1984 Act protects against death and personal injury, including disease or impairment, but section 1(8) excludes loss of or damage to property under this duty. A broken leg and a smashed phone therefore require separate treatment: the leg may be actionable here; the phone is not recoverable merely through the 1984 Act.
Continue this lesson.
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