Ask a lawyer: what’s the duty of care from landowners to trespassers?

Jan 17, 2020

Written By Tony Hannington. Case studies by Becky Kells

What duty of care do landowners have to trespassers? Tom Hannington, Head of Lime Solicitors, elaborates.

It is a well-known and perfectly understandable fact that owners of land owe a duty of care to people who are lawfully on or in their premises. The extent of that duty may vary depending on the status of the landowner—duties imposed on landlords to their tenants invariably can be higher than those a local authority owes to people walking on their pavements, for example, or individual house owners owe to people who lawfully are on their property.

It’s also worth noting that there is no requirement for there to be express permission to be on the premises—the law will imply permission in a number of scenarios—postal workers, delivery people and refuse collectors, to name a few.

Perhaps less instinctively logical is the (albeit lower) duty of care owed to trespassers on your property. “Why should someone be owed any duty of care when they are unlawfully on your land?”, you might well ask.

In theory

Common law has developed over the years, and been enshrined in an Act dedicated to this situation—the Occupiers Liability Act 1984. Whilst the Act of the same name enacted in 1957 sets out the duties to a lawful visitor (and does not set out any duties owed to a trespasser whatsoever)—in essence, to keep the premises in a reasonably safe state of repair so as not to expose visitors to a foreseeable risk of injury—the 1984 Act sets our very different criteria.

The occupier’s duty of care is engaged only if all three criteria set out under section 1(3) of the 1984 Act are satisfied, namely:

a: it is aware of the danger or has reasonable grounds to believe that it exists

b: it knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned, or that they may come into the vicinity of the danger (in either case, whether they have a lawful authority for being in that vicinity or not)

c: the risk is one against which, in all the circumstances of the case, it may reasonably be expected to offer some protection.

The onus is on the claimant to prove that the occupier had actual knowledge that the claimant was in the vicinity of the danger and the test is whether a reasonable person would have come to those conclusions.

If the above criteria are satisfied and a duty of care established, the claimant must go on to show that there has been a breach of that duty. The test for whether the occupier has breached their duty is not dissimilar from that in the case of authorised visitors. And this duty means the occupier of the premises should take reasonable care to make sure no-one is injured on the premises.

In practice

So how does that work in practice? There have been many reports over recent years of children suffering catastrophic injuries, sometimes fatalities, as a result of undertaking dangerous activities on railway premises—train surfing, running over the rails and daubing graffiti over railway bridges and walls are a constant headache and well known to the authorities.

One way for owners to discharge their duty is to give warning of the danger—clear signage alerting potential trespassers to the existence of high voltage electric cables or rails, for example. It is all about reasonableness—if there is a significant danger of serious injury, the warnings should be clearer and more prominent. Where there has been a history of the area being used, e.g. by children as a de facto playground, efforts should be made to secure the premises out of operating hours. Large gaps in the fencing etc should be repaired so as not to allow access and serve as an enticement to young trespassers.

As stated by the Judge in a claim involving the dangers of electricity—“to diminish the attraction of such alluring but potentially lethal structure, electricity undertakers have long been required to fix to them prominent notices warning of the danger, and effective devices to forestall this notorious Nelsonian disposition” - i.e. they should be aware, and seek to stop, kids who are oblivious to the sometimes clear danger that they may be exposing themselves to.

The Occupiers Liability Act restricts consideration of the dangers to “the state” of the premises. Arguments arise about what is included within this definition—cases have gone against Claimants when e.g. the injury has been caused by a shallow lake, a fire escape and a defective skylight. However, in the Keown fire escape case, the Judge recognised that premises which may not be dangerous for an adult may nevertheless be dangerous for a child—it is a question of fact and degree.

Case study 1: R v Collins 1973

This mid-70s case caused a legal debate about what constituted as trespassing. An 18-year-old girl went to bed in her mother’s house in Colchester after spending the evening with her boyfriend. She slept naked by her bedroom window, and was intoxicated at the time.

The girl awoke in the middle of the night to find a naked man at her window. She couldn’t remember exactly whether the form was inside or outside of the window at that point. Assuming the man to be her boyfriend, the girl invited him in and proceeded to have sex with him. She gradually felt that something was different, and upon turning the bedside light on, she became aware that he was not her boyfriend. She slapped the man, and bit his arm when he tried to take hold of her arm, then told him to leave. She went to the bathroom, and when she had returned, the man had vanished.

In this surreal case, described by the judge as “being so improbable as to be unworthy of serious consideration and as verging on times farce” if the events had been a play, Collins was sentenced to 21 months imprisonment after being convicted of burglary with intent to commit rape. In his trial, his barrister tried to argue that Collins did not actually enter as a trespasser, because the victim invited him in under the mistake of fact, believing him to be her boyfriend.

When Collins appealed the case, his conviction was quashed because the jury was never invited to consider if Collins was, in fact, a trespasser when he entered the victim’s bedroom.

Case study 2: Denby Collins

In December 2013, 38-year-old Denby Collins entered a house in Gillingham, Kent, with a suspected intent of burgling the property. He was tackled and restrained by at least one resident of the house. Police officers called to the scene quickly realised he was unresponsive and took him to Medway Maritime Hospital. As of 2016, Collins remained in a coma.

The homeowner in the case was not prosecuted, which led to Collins’ father launching a challenge to the so-called “householder defence”—a law introduced in April 2013 by the Justice Secretary at the time, Chris Grayling. The defence gives homeowners the right to use “disproportionate force” against intruders to their home.

The challenge issued by Collins’ father argued that the law—said to show the public that “the law is on their side”—in fact, contradicted the European Convention on Human Rights. The challenge was rejected by the High Court.

A police officer believed to have handcuffed Collins at the scene resigned in 2014.

Case study 3: Keown v Coventry Healthcare NHS Trust 2006

In 2006, an 11-year-old boy fell from the underside of an external fire escape on the property of Coventry Healthcare NHS Hospital Trust. The child had been climbing in an area of the hospital grounds used by the public for access, and well-known as a spot where children played.

The claimant was held two-thirds responsible in an initial trial, but later this was appealed. It was deemed that Keown did not satisfy section 1 of the Occupiers Liability Act 1984—he understood the risk of using the fire escape improperly or dangerously. This use of the equipment dangerously meant that the claimant created the danger himself, so the health trust could not be liable.

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