Visitors and Trespassers - What are your obligations?

Jun 1st, 2021

Françoise Vandale, Partner

As an occupier you will owe a duty of care to any third parties on your land whether they are there by your invitation or not. This means that you could be liable for any accidents involving anyone on your land caused by the state of your premises.

Statute refers to occupiers which encompasses both landowners, tenants and possibly others. The fundamental test is the degree of occupational control.

The position with regards to visitors is governed by the Occupiers Liability Act 1957. A visitor is deemed to be someone who is in receipt of the occupier’s invitation or permission, whether express or implied, to enter or use the premises.

  1. Duty of care owed to a visitor

Under section 2(2) of the Act the duty of care owed to a visitor is ‘a duty to take such care in all the circumstances of the case as is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’.

The occupier needs to take into account the characteristics of the visitor in question. For example they must be prepared for children to be less careful than adults and conversely there is a lesser expectation when the visitor is a skilled worker.

An occupier will not be liable for accidents caused by work conducted by independent contractors, provided that he has acted reasonably in using the contractor in question and has taken the proper reasonable steps to check competency and that the work was properly done. 

Where a visitor goes beyond the extent of the permission granted by the occupier, they are seen to be a trespasser.

  1. Duty of care to trespassers

Contrary to possible expectation, occupiers do still have a duty of care towards trespassers which is set out in the Occupiers Liability Act 1984.

The duty is at a less onerous level. It only comes into play if the occupier:

  • is aware of the danger or has reasonable grounds to believe that it exists;
  • they know or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into the vicinity thereof; and
  • the risk is one against which, in all circumstances, he may reasonably be expected to offer some protection to the trespasser. 

The duty of care itself is 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 the danger concerned. This may be discharged by taking such steps as are reasonable to give warning of the danger concerned or to discourage persons from incurring the risk.

3. Be sure of your obligations

So to summarise, an occupier is obliged to show a duty of care to both visitors and trespassers but to a lesser extent in respect of trespassers which is perhaps not surprising. Occupiers need to be careful to avoid any issues arising. It is better to do too much than too little.

Please contact us if you need help in this area.

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