An Accident Waiting to Happen?

As rioters, protesters and squatters continue to make the headlines, it is likely that most property owners will already be keeping a watchful eye out for unwanted visitors. If the threat of suffering damage to property, or losing it to squatters, is not a sufficient incentive to secure and maintain it, the possibility of paying damages for injuries sustained by trespassers just might be.

The liability of owners for injuries sustained on their property is nothing new (the Occupiers’ Liability Acts 1957 and 1984 deal with liability for injury to invited guests and to trespassers respectively). It is, however, something that could easily catch owners out, especially large companies with extensive property portfolios. With void rates still high, it would be all too easy to let a property slide into disrepair until a tenant is found. Ensuring the correct security, warnings and safety precautions are in place, however, could result in the saving of significant sums of money.

The duty of care does not apply only to property owners but potentially to tenants too, and either can be an “occupier” for the purposes of the Acts. Any occupier of a property can find themselves liable for injury to both trespassers and those who have been invited onto the property. It all comes down to who has “a sufficient degree of control over premises to put him under a duty of care”.

The general rule is that a duty of care is owed to trespassers where the occupier was aware of (or had foreseen) the presence of both the trespassers and the dangers. Most of us will have seen news stories about homeowners being held liable for harming intruders, but the important factor in those cases is that they involved intentional harm rather than property being neglected. The courts have so far been reluctant, though, to impose a duty of care in respect of unintentional harm to trespassers and intruders. They have looked to protect property owners and promote a level of self-accountability for one’s own actions, rather than encourage the growing claims culture.

The duty of care is higher in respect of those who are invited onto property than for those who come on to it without permission. Occupiers need to be seen to be taking “such care as…is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. The courts have so far even been inclined to protect occupiers in these instances, finding on a number of occasions that the conduct the injured person was engaging in was not within the purpose for which they were invited onto the property. As one judge said, “when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters”.

Despite this apparently understanding approach, it would be foolhardy to ignore this issue as the courts will not hesitate to hold occupiers to account where they have failed to keep their property in a safe condition. It is, therefore, important that, despite growing financial pressures, owners and occupiers remain fully aware of any potential duty of care towards not only those who are invited onto their land but also those who are not. This will require regular dialogue with any managing agents to ensure they are carrying out inspections and risk assessments of the land and are aware of exactly who is using it and what they are using it for. If they do not then take appropriate precautions against potential dangers, it could quite literally be an accident waiting to happen.

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