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Trespassers Beware
A recent Court of Appeal decision serves as a useful reminder of
the principles of a landowner’s responsibility for injury to
trespassers under the Occupiers’ Liability Act 1984.
Under the Act, a landowner or occupier owes a duty of care to
trespassers provided:
· the occupier is aware of the danger;
· the occupier is aware that the other person (the trespasser)
is, or is likely to be, in the vicinity of that danger; and
· the risk is one against which the occupier may reasonably be
expected to offer the trespasser protection.
The case of Donoghue-v-Folkestone Properties Ltd confirmed that
these three conditions must be considered in the light firstly of
the characteristics and attributes of the individual claimant and
secondly of the circumstances prevailing at the time the individual
suffered injury. In that case, the claimant – a Royal-Navy trained
diver – decided, after spending Boxing Day evening in a local pub,
to go for a midnight swim in Folkestone Harbour. The claimant dived
from the slipway into the harbour and hit his head on a wooden beam
forming part of a low-water dry dock, breaking his neck and
rendering him tetraplegic.
The Court held that the harbour owner could have no reason to
anticipate that the claimant, a mature adult and experienced diver
would, when drunk, go onto the slipway, after midnight, in the
middle of winter, with the intention of diving into the harbour in
the vicinity of the grid piles which were inadequately covered by
the water. The most the harbour owner might have been expected to
do would be to erect a warning notice on the slipway alerting
people to the danger of shallow water and hidden obstructions.
The Court also gave further comfort to landowners in relation to
two other types of action brought by trespassers, namely where
property is clearly dangerous and where the trespasser is involved
in an activity which is in itself inherently dangerous.
Where a property is obviously dangerous and there is no reason
for a trespasser, seeing the danger, to enter the property, then a
duty under the Act is unlikely to arise, particularly where the
trespasser is an adult who deliberately risks injury by entering
onto the property.
Similarly, where a person is engaged in an activity which
carries a risk of injury, such as skiing or mountaineering, then it
is unlikely that any injury could be attributed to the state of the
premises and therefore create a duty on the landowner to protect
the trespasser, unless the injury was caused by an unusual or
latent feature of the landscape.