Liability for trespassers
It is a misconception that injuries sustained by trespassers cannot result in an occupier being liable for damages.
A recent successful HSE prosecution against a construction company is a stark warning that occupiers can still be liable for harm caused to those not authorised to be on their premises.
Earlier this month, the HSE reported that a civil engineering firm had been fined £600,000 for breaches of the Health & Safety at Work etc Act 1974 and Construction (Design and Management) Regulations 2015. Howard Civil Engineering Limited were in control of a construction site for a new build housing development which was situated adjacent to an existing housing development and, in particular, busy pedestrian footpaths and roads.
A seven year old had managed to gain (unauthorised) access to the site and become trapped in a drainage pipe which had been fixed in to the ground in preparation for the installation of fencing posts. Having become trapped, he was not discovered until the following morning when construction work had resumed, by which time he had tragically suffocated.
The construction company pleaded guilty for failing to ensure sufficient fencing was in place, with inadequate planning and monitoring of the perimeter, to prevent unauthorised persons accessing the site. At some places, fencing was deemed non-existent and in other areas it was well below six feet in height.
As the HSE commented after the hearing, “The dangers to children gaining access to construction sites and treating them like a playground is an ongoing problem which must be addressed at all types of sites… the industry must do all it can to ensure children can’t access construction sites and be exposed to the inherent risks”.
Beyond the costly fine or imprisonment, and reputational detriment that can flow from a successful HSE prosecution, an occupier is also at risk from a civil claim. It is a misconception that injuries sustained by trespassers cannot result in an occupier being liable for damages.
Whilst imposing a relatively high threshold for claimants to overcome, the Occupiers Liability Act 1984 was introduced for exactly those circumstances where a person or organisation in control of premises knows or has reasonable grounds to believe:
- a danger exists; and
- someone may come in to the vicinity of the danger.
Whilst under the 1984 Act, occupiers can avoid liability where the danger arises not from the state of the premises, but purely from what the trespasser chooses to do on them; it may be harder to argue that the premises themselves are safe when they are a building site under construction.
It was reported during the criminal proceedings in this case that there was clear evidence that adults and children were frequently and easily gaining access to the site, although the construction company denied knowledge of this. By their very nature, construction and similar sites during the build phase can contain various potential hazards in respect of which those authorised to be on site have usually been alerted and trained, but which can prove a trap for the unwary.
Consequently, the security of such sites should be a key priority from the outset when planning and undertaking a construction project at all stages of the build. It is incumbent on principal contractors and others in charge of construction sites to regularly monitor the site, remove or secure potential hazards, ensure the site’s security is preserved, and to take effective action as soon as they are aware that those not authorised to be there are gaining access to the premises.
Not only are such areas potential ‘playgrounds’, but they are also vulnerable to vandalism, hence measures need to be constantly kept under review to respond to changing circumstances. Such measures are likely to include:
- Substantial perimeter fencing;
- CCTV monitoring;
- Regular inspections to identify hazards on site;
- Daily security checks of perimeter access and walls;
- Training all employees to be alert to and to report hazards, disrepairs, or signs of unauthorised access and to secure areas being worked on;
- Clear demarcation of responsibilities between organisations for undertaking these control measures.
In civil claims, there may well be a costly dispute between various contractors as to who had the requisite knowledge and control in respect of any particular incident, but regular communication and co-operation between all concerned throughout the course of a development is key to minimising the risk of injury and liability. Whilst this may come at a cost, the cost of a successful prosecution for failing to do it could be far worse.
For further information about this case, or a discussion about how to avoid a liability case like this arising, please contact a member of our team of professional risk and construction lawyers.