WHERE ARE WE WITH LIABILITY TO TRESPASSERS?
08 October 2018
Today in Blackburn, about 2 miles from our offices a missing 9 year old boy was found at a factory where he had fallen through a roof. It is reported the child is in a critical condition and our thoughts are with him and his family.
Can the law help? The simplistic take would be to say that he was trespassing therefore there should be no liability. However the circumstances of the incident will need to be considered as the law is not that simple.
The governing law is the Occupiers Liability Act 1984. It is a very short but important piece of legislation.
This law is used to determine (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and (b) if so, what that duty is.
The Act sets out that at section 1(3)
An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if
- he is aware of the danger or has reasonable grounds to believe that it exists;</li>
- 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 (in either case, whether the other has lawful authority for being in that vicinity or not); and
- the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
And provides that section 1(4): -
Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
But in the words of Lord Hoffman “it has been repeatedly said in cases about children that their ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated” [Jolley v. Sutton London Borough Council  UKHL 31].
The premises in question are factory premises. Would a warning sign advising of a fragile roof suffice? Probably not for a child but almost certainly for an adult.
We do not know if the roof was unsafe or fragile. If it was it has close similarities to the case of ‘Young v Kent County Council’ where the Claimant was a 12 year old child who climbed on to the roof of the school buildings using the flue of an extractor fan attached to the side of the building. He then fell through a sky light on the roof. The skylight was brittle and a Health and Safety Executive report indicated that there had been a problem with access to the roof prior to the accident. In that case even though the child Claimant knew he should not be on the roof, liability was established albeit with 50% contributory negligence as the Council knew of the risk.
Put in straight forward terms this is an area of law which is quite easy to follow. If an adult trespasser is injured establishing liability will be more difficult. However if that trespasser is a child then the likelihood of liability attaching is much greater. Property owners can reduce their risk by undertaking a regular system of inspection of their property, if necessary from a health and safety adviser. If defects are noted they must be attended to. If they are not attended to or are not noted when they should have been, the likelihood of liability attaching is significant. There will be contributory negligence on the part of the trespasser, but if the injuries are severe as is commonly the case with falls from height, then contributory negligence will not prevent the payment of significant damages to the injured person.
Jerard Knott is Head of Medical Negligence and Serious Injury at Curtis Law.
He is an APIL Accredited Senior Litigator and Accredited Clinical Negligence Specialist.