If the courts were to take a very broad view of what the occupier `ought reasonably' to protect against, the occupier would be liable simply on the basis that both the trespasser and the danger were reasonably forseeable. - Justin Santiago
The law governing the duty owed by an occupier to a trespasser was left unaltered by the 1957 Act. Historically there was no duty owed to a trespasser and was only liable if it could be proved that he had done some act intending to harm the trespasser or with reckless disregard for the trespasser’s safety – Robert Addie & Sons v Dumdreck. This was altered in BRB v Herrington where it was held that trespassers were owed the common duty of humanity.
Under the Occupiers Liability Act 1984 – S1(1)(a) duty is owed by an occupier to persons other than visitors, in respect of injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them
A duty arises if three separate conditions are satisfied S1(3) :-
a. he is aware of the danger and has reasonable grounds to believe that it exists
b. he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger and
c. the risk is one which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
Standard of care S1(4) - owes a duty to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned – what constitutes reasonable care will vary according to the circumstances
The duty owed may be discharged when warning of a danger is given S1(5)
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 trespasser 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 Tomlinson v Congleton Borough Council 2003 was therefore broadly welcomed as a reintroduction of common sense. The central theme of the Lords' ruling is that the cause of the claimant's injury was his own folly, not something that the defendants did or failed to do. The danger of the lake was obvious, and the authority had erected signs to that effect, and had directed its park staff to eject people from the lake if they were found there. There could be no dount that the claimant had known of the danger, and that he must therefore have been deemed to have accepted it voluntarily.
Two points brought up by Lord Hoffman : the first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.
The Court of Appeal made no reference at all to the social value of the activities which were to be prohibited. The majority of people who went to the beaches to sunbathe, paddle and play with their children were enjoying themselves in a way which gave them pleasure and caused no risk to themselves or anyone else. This must be something to be taken into account in deciding whether it was reasonable to expect the council to prevent people from using the beaches or to deprive people form using the beach in a harmless way.
The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd QB 1008, 1024, para 53 :
Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone (Bolton v Stone  AC 850), to whom the House of Lords held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for six out of the Cheetham Cricket Club ground. She was certainly not engaging in any activity which involved an inherent risk of such injury.
I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ, ante, p 62B-C, para 45, that it is "only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board  AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis  1 AC 360.
So this appeal gives your Lordships the opportunity to say clearly that local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers. On the other hand, if the decision of the Court of Appeal were left standing, every such occupier would feel obliged to take similar defensive measures.
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. Secondly, 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 1984Act makes no such statement. It is not entirely clear why a person is allowed to waive his responsibility to lawful visitors, but not to trespassers. It could be that, in practice, the 1977 Act would prevent any effective waiver anyway. Alternatively, the duty of care to a trespasser 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.
- Justin Santiago
- Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.
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