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Do adult trespassers face a "no entry" to compensation?

Driver v Dover Roman Painted House is the latest in a line of unsuccessful adult trespasser claims under the Occupier’s Liability Act 1984.

Driver v Dover Roman Painted House (unreported – 11 April 2014) is the latest in a line of unsuccessful adult trespasser claims under the Occupier’s Liability Act 1984. 

In Driver, the claimant fell over a three foot wall on the defendant’s premises on her way home from a night out.  The claimant herself had no memory of how she came to fall and her friend gave evidence that although they had visited pubs during the night out, they had only had a few drinks.  The wall was at the top of the slope leading to a moat in which trees and shrubs were planted.

The claimant pleaded breaches of the Occupier’s Liability Acts 1957 and 1984 on the basis that the moat was a hidden trap and the wall should have been higher or better illuminated.  The claim was dismissed on the basis that the friend’s evidence was unconvincing and the court found that it was likely the claimant was intoxicated and attempting to cross the wall to relieve herself.  The court also found that liability was not established under either the 1957 or 1984 Acts.  The claimant was not a visitor for the purposes of the 1957 Act.  Under the 1984 Act, the claimant would be required to show that there was a danger due to the state of the premises.  The wall had been in situ for around 40 years, there had been no previous adverse incidents, no complaints and no injuries despite approximately 650,000 visitors during that time.  Furthermore, the moat was not a hidden danger as it was lit and the drop should have been obvious.  The claimant could not satisfy the applicable burden. 

The 1984 Act places a duty on occupiers to “take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises” by reason of any danger on those premises.  The threshold for the imposition of liability is high and, as a result, the courts have appeared reluctant to impose liability in claims by adult trespassers. Measures such as signs reading “danger, keep out” have been considered sufficient (Ratcliff v McConnell [1999] 1 WLR 670), and the courts have found that there is no duty to warn an adult of an obvious danger (Tomlinson v Congleton BC [2003] UKHL47). 

Despite the rare number of successful adult trespasser claims, occupiers will be well served to bear in mind their duties to persons on their land, whether visitors or trespassers.  The courts are more willing to impose liability in cases of injury to children or teenagers, on the basis that such persons are more likely to be ‘enticed’ to trespass and less likely to perceive the dangers, and occupiers should take steps to prevent them. For example in Adams v Southern Electricity Board [1993], the court held the defendant occupier primarily liable when the claimant, a fifteen year old boy, climbed a transformer installation and sustained serious electrocution injuries (albeit in that case the claimant was found 2/3 contributory negligent).  However, the Act does provide for certain adult trespasser claims to succeed, subject to the strict criteria being satisfied.  To mount a defence to such claims, occupiers need to be able to show amongst other things either that there was no danger (as highlighted by evidence in Driver about the lack of other accidents) or that they had no knowledge of persons being in the vicinity of it.