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 TRIMESTER TABLE OF CONTENTS

1 2 3 4 5 6 7 8 9 STATEMENT OF PURPOSE3 INTRODUCTION. 4 OCCUPIERS LIABILITY ACT...5 LIABILITY FOR TRESPASSERS9 DUTIES TO TRESPASSERS...10 LIABILITY FOR CHILDREN..13 THE ALLUREMENT PRINCIPLE...14 CONCLUSION..16 BIBLIOGRAPHY.. 17

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.

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.

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 ifa) 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 colleges 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 2

Modern Tort Law by V.Harpwood [1999] WLR 670

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 4

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

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
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.(British railway board v. Herrington) AC 877, 940 per lore diplock. [1973] 1 QB 591, 605 7 www.kevinboone.com

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.

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 propertyowner 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.

Duties to trespassers
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Principles of Tort Law by V.Harpwood

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.

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www.en.wikipedia.org [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 defendants 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 oclock 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 12

Ramaswamy Iyers Law of Torts [1912] 2 IR R 290 13 AIR 1964 SC 205 14 Ramaswamy Iyers 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.

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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 Claimants 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. 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
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[1966] 64 LGR 440, Textbook on Torts by Jones AIR 1958 Punjab 246

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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.

THE ALLUREMENT PRINCIPLE

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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 defendants 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.

CONCLUSION
18 19

Tort Cases and Material by Hepple, Howarth & Mathews 1922 20 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.

BIBLIOGRAPHY

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BOOKS 1. Principles Of Tort Law 2. Textbook On Torts 3. Tort Cases and Materials 4. Modern Tort Law 3rd edition by Vivienne Harpwood 8th edition by Mike.A.Jones 5th edition by Hepple, Howarth and Mathews 6th edition by Vivienne Harpwood

5. Ramaswamy Iyers 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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