NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

A PROJECT ON LAW OF TORTS-II

LIABILITY TOWARDS TRESPASSERS AND CHILDREN UNDER THE OCCUPIERS’ LIABILITY

ACT 1984

SUBMITTED TO:MR. RAJIV KHARE

SUBMITTED BY:Alok Mishra

2011 B.A LL.B (HONS.)36

2nd TRIMESTERTABLE OF CONTENTS

1 STATEMENT OF PURPOSE……………………………………3

2 INTRODUCTION………………………………………………. 4

3 OCCUPIERS’ LIABILITY ACT………………………………...5

4 LIABILITY FOR TRESPASSERS………………………………9

5 DUTIES TO TRESPASSERS…………………………………...10

6 LIABILITY FOR CHILDREN…………………………………..13

7 THE ALLUREMENT PRINCIPLE……………………………...14

8 CONCLUSION…………………………………………………..16

9 BIBLIOGRAPHY……………………………………………….. 17

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STATEMENT OF PURPOSE

The Statement of Purpose is to basically study and understand the duties and rights

towards trespassers and children in case of dangerous premises under the Occupiers’

Liability Act 1984.

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INTRODUCTION:

Liability for dangerous premises cannot be considered as a separate tort, but a compound

of liability in negligence, nuisance and also the strict liability rule in Rylands v Fletcher.

While determining the issue, the basic question asked is: where did the damage occur. If

the damage occurred on the premises, the common law action was in the form of

negligence. If the damage occurred off the premises, the action will lie usually in

nuisance or strict liability.

The basic question when one asks about liability towards dangerous premises is about the

occupier who owns that particular premises. The liability towards third parties is

commonly called ‘occupiers liability’.

Occupiers Liability is further sub-divided into liability to lawful visitors which is

governed by the Occupiers Liability Act 1957 and the liability to persons other than

visitors under the Occupiers’ Liability Act 1984.

In this project, I am dealing with liability towards unlawful visitors under the Occupiers

Liability Act 1984 which deals with trespassers and children.

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THE OCCUPIERS LIABILITY ACT 1984

The Occupiers’ Liability Act 1984 basically tells us about the duty of occupier to persons

other than his visitors.

An occupier of premises owes a duty to another, as in who is not a visitor in respect of

any such risk if-

a) he is aware of the danger or has reasonable grounds to believe that the risk 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 concerned.

c)The risk may be one against which, in all the circumstances of the case, he may

reasonably be expected to offer the other some protection.

It also states that an occupier of premises owes a duty of care to another in respect of

such a risk, the duty is to see that he does not suffer injury on the premises by reason of

the danger concerned1.

Duty owed might be discharged by taking such steps as are reasonable in all the

circumstances by giving warnings of the danger concerned or to discourage persons from

incurring the risk.

No duty is owed if the person has willingly accepted the risk and got injured and no duty

is owed if persons use the highway. No duty is owed to such persons.

The leading case on the Occupiers’ Liability Act 1984 is Radcliff v. McGonnell2 where

the plaintiff went drinking with two friends after which they decided to go swimming in

his college’s swimming pool. The gate to the pool was locked, but the plaintiff gained

access by climbing over it. The only lighting at the pool was a motion activated security

light. The plaintiff dived into the pool, hit his head onto the bottom and suffered very

severe injuries.

1 Modern Tort Law by V.Harpwood2 [1999] WLR 670

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As per the Act, it requires the court to decide first whether a duty arises at all and

secondly whether the defendant has reasonably acted in all the circumstances to see that

injury did not occur by reason of danger and thirdly whether there were warnings to

discourage people from taking the risk.

There is no element in the Radcliff case to exempt the defendant from liability.

The Occupiers’ Liability Act 1984 covers three categories of entrants, the most important

one being trespasser3.

a) Persons exercising a statutory right

People who enter land exercising rights conferred by an access agreement or order

section 60 of the National Parks and access to the Country sides Act 1949 are entrants.

b) People exercising a private right of way

It has been decided in the case of Holden v. White4, that people using a private right of

way were not visitors and therefore no duty of care had been owed to them.

The Law Commission intended that people using a private right of way should be

covered by the Occupiers’ Liability Act 1957, there may still be circumstances where the

act does not apply to the people. If the owner of the land is not an occupier, the act does

not apply. In Holden v. White, it was decided that persons using private right of way were

not the visitors of the occupier land. This means that a milkman who was injured by a

defective manhole cover could not sue the owner of the land over which the right of way

passed.

Warning

In reasonable circumstances, the occupier may discharge his duty by taking reasonable

steps to give a warning of the danger concerned, or to discourage persons from taking the

risk. Warning notices would often be inadequate for children, either because the child

cannot read or is incapable of appreciating the danger. In such a event, the occupier may

3 Principles of Tort Law by V.Harpwood4 [1982] 2 ALL ER 382

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take will have to take additional steps like erecting obstacles particularly if the risk is an

allurement5.

Warning notices will be more successful with adults and it seems that almost any notice

will suffice as in the case of Westwood v. Post office6. Also there is no duty to warn an

adult about an obvious risk which could readily have been avoided.

Acceptance of risk

The defence of volenti non fit injuria can be applied as per the Occupiers’ Liability Act

1984. In this, the defendant must establish that the plaintiff not only consented to the risk

but also that he agreed that if he was injured, the loss should be his not the defendants’.

In cases involving trespassers, it is possible to argue that knowledge of a risk plus entry

onto the land renders a trespasser volenti as in the case of Westwood v. Post office.

c) Exclusion of liability

The act makes no reference to the question of whether an occupier can exclude or restrict

his potential liability under this act unlike the 1957 act which reserves an occupier

common law right to ‘restrict, modify or exclude’ his duty to visitors.

There may be some limit upon the type of conduct for which liability could be excluded.

It would be strange if the occupier could exclude the statutory duty and thereby avoid all

liability, even for reckless acts and omissions. It would be advisable that an occupiers’

power to exclude liability rests upon a right to prohibit entry. The occupier has no right to

prevent the entry of a person exercising a public right of access.

Two differences should be noted between the duty of care to lawful visitors and that to

trespassers7. 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

5 .(British railway board v. Herrington) AC 877, 940 per lore diplock.6 [1973] 1 QB 591, 6057 www.kevinboone.com

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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 trespassers. 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.

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LIABILITY FOR TRESPASSERS

Who is a trespasser?

A trespasser may be defined as a person whose presence on land is unknown to the

occupier, or if known is objected to by the occupier in some practical way. In many

instances, it was possible for the courts to find that people who had been repeatedly

trespassing on land had become lawful visitors, though there was no fixed period of time

or number of occasions on which the trespass had to occur in order to establish a lawful

presence on land8.

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, if someone creeps into my back garden in the dead of night, intent on burgling

my house, why should I 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 accidentally 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 constituting 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

trespasser is, unsurprisingly, lower than that owed to a lawful visitor, but it is not

negligible.

8 Principles of Tort Law by V.Harpwood

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Duties to trespassers

With respect to the duties owed to trespassers, there are two types of trespassers to

consider. First, there is the undiscovered trespasser, to whom the property owner owes no

duty whatsoever. Second, there is the anticipated or discovered trespasser. To those

parties, the landowner owes a duty of common humanity (British Railways Board v.

Herrington)a duty to warn them of deadly conditions on the land which would be hidden

to them, but of which the property owner is aware. A warning sign at the entrance to the

land will suffice for this purpose. However, a property owner is under no duty to

ascertain hazards on his property, and cannot be held liable for failing to discover a

deadly hazard which injures a trespasser9.

Furthermore, an adult trespasser who is injured while on a defendant's property cannot

sue under a theory of strict liability, even if the landowner was engaged in ultra

hazardous activities, such as the keeping of wild animals, or the use of explosives.

Instead, the trespasser must prove that the property owner intentionally or wantoning

injured the plaintiff to recover. The exception is a child who is trespassing to play on

ultra-hazardous items on the land. Since these trespassers are considered "anticipated"

they are accepted under the doctrine of attractive nuisance.

A property owner may use reasonable (no deadly) force to prevent a person from

trespassing on his, her or its land, or to expel a trespasser. However, a property owner

may not force a trespasser off of his land if doing so would expose the trespasser to a risk

of serious injury. For example, a trespasser who takes shelter in a stranger's barn during a

powerful storm cannot be expelled until the storm is over.

Certain case laws The occupier has no duty to warn the trespasser of existing defects or

to take precautions for his safety. In the case of Grand Trunk Rly of Canada v. Barnett10,

the railway company was not held liable to a person traveling without a ticket and injured

by collision.

9 www.en.wikipedia.org10 [1911] AC 361

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In the case of manned railway level crossing, the moment the public come to know or

have reason to believe about the approach of any train, they are trespassers on the level

crossing belonging to the railways11.

Also in the case of Coffee v. McEvoy12, a policeman who entered the defendant’s

premises one night suspecting something wrong fell into a saw pit was held to have no

remedy as he had no right to enter.

In the case of Cherubin Gregory v. State of Bihar13, it was held that an owner or an

occupier cannot set up a trap to cause personal injury to a trespasser. However, he may

adopt reasonable measures for prevention of trespass like putting up a barbed wire fence

or a wall with broken glass. A trespasser or a thief hurt by such things cannot obviously

complain. The occupier owes a duty not to do any act involving danger to trespassers in

the premises with knowledge of their presence or its likelihood.

A driver of a railway engine who sees a trespasser on the track is bound to use reasonable

care to avoid running over him by whistling and warning or if need by slowing or

stopping the train14.

Where a person while passing through the land of another at ten o’clock at night to reach

the land under his cultivation received a shock from the live electric wire laid in the land

of other, will be entitled to receive damages from the landowner who has laid the wire.

The duty of a child trespasser is not different in principle from that of an adult trespasser.

However, the danger to one may not be a danger to the other and the occupier may be

bound to take greater precautions to avoid dangers to straying children than in the case of

adults.

11 Ramaswamy Iyer’s Law of Torts12 [1912] 2 IR R 29013 AIR 1964 SC 20514 Ramaswamy Iyer’s Law of Torts

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Aggravated or Anticipated Trespass

Where the trespasser trespasses on land with the intention of disrupting or intimidated

those taking part in lawful activity taking place on that or adjacent land, then this is an

aggravated trespass and the Police can occasionally be of assistance in removing the

trespassers. This is of particular use where protestors are attempting to disrupt lawful

activity. This can include nuclear sites or scientific laboratories. In some circumstances

there can also be action taken where there is an anticipated trespass which can be vital for

clients with sensitive businesses such as landowners with laboratories on site carrying out

animal experiments15.

15 www.boodlehatfield.com

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LIABILITY FOR CHILDREN

The degree of care to be shown towards children as well as to adults, who come to the

premises, may produce different results. This is because the degree of care shown

towards children and adults are different. An occupier must always be prepared for

children to be less careful than adults under the Occupiers’ Liability Act 1957, section

2(3).

An object which poses no threat to an adult may be dangerous to a child, as for in

Moloney v. Lambeth London Borough Council16 where a boy aged four fell through a gap

in the railings protecting a stairwell. An adult could not have fallen through the gap. The

occupier was held liable..

In the case of Vijay Shanker v. Union of India17, the railway authority was held not liable

for injury to a two year old child trespassing on a railway line as the Railways Act in

India did not cast a duty on a railway authority to fence the line even where it ran through

residential houses on both sides.

Keown v. Coventry Healthcare NHS Trust (2006), where the Defendant had a building in

grounds where it knew children. The Defendant did not know that children climbed the

underside of a fire escape. The Claimant (11) suffered a serious head injury when he fell

30 feet from the fire escape. The Court of Appeal dismissed the claim under the 1984

Act. Neither the building nor the fire escape were dangerous in themselves. They were

only made dangerous by the Claimant’s actions. In the case of children, there was a duty

to protect against obvious risks where the child might not be able to recognise a danger

that an adult might. The Claimant had known that there was a risk of falling and that what

he was doing was dangerous. Thus, the risk arose not out of the state of the premises but

out of what the Claimant chose to do.

16 [1966] 64 LGR 440, Textbook on Torts by Jones17 AIR 1958 Punjab 246

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Siddorn v Patel (2007) where the Claimant sought damages from her landlord after she

fell through a Perspex skylight in a garage roof adjacent to her flat when, during a party,

she and others climbed out of a window and danced on the roof. The Judge dismissed the

claim. There was no evidence that the Defendant had been aware that she or any other

unauthorised person was likely to make use of or gain access to the roof and the

Defendant was entitled to take heed of the fact that the tenants were educated and

sensible adults.

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THE ALLUREMENT PRINCIPLE

Allurement Principle basically refers to the cases where courts have found occupiers

liable to children who have been attracted by ‘traps’ onto certain parts of premises and

injured there18.

In the case of Glasgow v. Taylor19, a seven year child ate some poisonous berries while

playing in a public park. The bush was not fenced off and as a result the child died. Here

the berries constituted a trap or allurement to the child. The main point inferred from here

is that allurement principle only applies to cases where the child is there in the premises

as a lawful visitor.

It must be also noted that allurement will not make a child trespasser, a lawful visitor. In

the case of Liddle v.Yorkshire20, it was held that the defendants were not liable when a

child who was a trespasser was playing on a high bank of soil and jumped off the soil in

order to impress is friends. Here the child was a trespasser as he had been warned by the

defendant’s on previous occasions.

Cases decided after Herrington case and before the Occupiers Liability Act 1984 came

into force in which occupiers were held liable to trespassers all concerned children.

However, Law Commission Report recommended that the kind of protection afforded by

Herrington ought to be extended to adults before the Occupiers Liability Act was passed.

CONCLUSION18 Tort Cases and Material by Hepple, Howarth & Mathews19 192220 North Riiding [1944]

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We can conclude that reasonable precautions should be taken for trespassers and children

even though they are not lawful visitors under the Occupiers’ Liability Act 1984.

Although they must have entered the premises illegally, still the owner of the land owes a

reasonable duty of care or the duty of common humanity towards them.

All reasonable precautions should be taken to see that the trespasser does not suffer injury

on the premises and steps should be taken to give reasonable warning of the danger

concerned or to discourage people from incurring the risk.

Basically, the defence of volenti non fit injuria should be observed by the defendant.

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BIBLIOGRAPHY

BOOKS

1. Principles Of Tort Law 3rd edition by Vivienne Harpwood

2. Textbook On Torts 8th edition by Mike.A.Jones

3. Tort Cases and Materials 5th edition by Hepple, Howarth and Mathews

4. Modern Tort Law 6th edition by Vivienne Harpwood

5. Ramaswamy Iyer’s Law of Torts 10th edition by A.Laxminath and M.Sridhar

WEBSITES

1. www.kevinboone.com

2. www.en.wikipedia.org

3. www.boodlehatfield.com

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