Occupiers’ liability: Duty owed to trespassers

Background

The Occupiers’ Liability Act 1984 imposes a duty on occupiers to take reasonable care for the safety of trespassers in respect of any risk of their suffering injury by reason of any danger due to the state of the premises or to things done or omitted to be done on them.

The threshold test in s.1 (3) of the Act provides that a duty is owed to trespassers in respect of any such risk if:

(a) the occupier is aware of the danger or has reasonable grounds to believe that it exists;

(b) the occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or that he may come into the vicinity of the danger; and

(c) the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the trespasser some protection.

Facts

The 16 year old claimant suffered serious injuries whilst trespassing on school grounds with a group of friends. They entered the grounds to play football, climbed on the low roof of the school and broke into and stole from the tuck shop. Finally, the claimant and another went up onto the upper roof and climbed over a fence onto a section incorporating a number of raised skylights, consisting of panes of unstrengthened wired glass. On climbing back over the fence, the claimant stood on a brace, jumped onto a skylight and fell through the glass sustaining a severe head injury.

The defendant local authority was responsible for the school and its grounds and was an occupier for the purposes of the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984 (OLA 1984). The claimant brought a claim against the local authority for damages for breach of statutory duty under the OLA 1984. The key issue was whether the section 1(1) duty had been engaged and so the court was required to determine whether the premises were dangerous.

The claimant argued that trespass on the roof outside school hours was a regular occurrence and that the school was therefore on notice that it was relatively easy for people to gain access to the roof and foreseeable that they would come into close proximity with the skylights. It was argued that the defendant had failed to discharge its duty under section 1(3) as it had failed to risk assess the likelihood of youths gaining access to the flat roof and to take reasonable steps to either replace the glass or fit a protective grill. The claimant relied on the High Court decision of Morison J in Young v Kent County Council [2005], a broadly similar case on the facts in which the court found for the child.
The local authority argued that the decision in Young was wrong but that, in any event, the skylight in Buckett was not defective and the premises were not unsafe or dangerous - the danger only arose because of the claimant’s own actions in climbing up onto the roof and jumping on the skylight. He therefore failed to satisfy the ‘threshold’ test in s.1 (1) of the Act.

Findings

HHJ Main QC dismissed the claimant’s claim:

Findings of fact

• The claimant was clearly a trespasser which meant that the scope of any duty owed by the local authority was defined by the OLA 1984.
• It was foreseeable that youths would trespass on the school grounds. There had been previous incidents of trespass and there was relatively easy access to the grounds. Once on the roof, it was foreseeable that a trespasser would come into close proximity with the skylights.
• The group had progressed from ‘benign’ trespass, to a group intent on having ‘reckless fun’ and then on to criminal activity. By the time the group accessed the skylight roof, the period of causing deliberate damage had ended. It was likely that the claimant jumped down on to the skylight thinking it would hold his weight and not with the intention of breaking it.
• The skylights were obvious, not defective or in need of repair.

No duty owed: s.1 (1) (a) of the 1984 Act not engaged

• In the circumstances surrounding the claimant’s accident, what the local authority knew or ought to have known were not the key to establishing liability.
• On almost all of the key factual issues, the court found in favour of the claimant. However, his claim ultimately failed as he had not established that the duty under s.1 (1) (a) of the 1984 Act was engaged. The court did not accept that the skylight, in the context of its ‘structure, makeup and location’ on the roof, was a ‘danger due to the state of the premises or to things done or omitted to be done on them’.
• As no duty was owed to the claimant under the 1984 Act and there was no other duty owed to the claimant as a trespasser, his claim was dismissed.
• To avoid any doubt, in the context of roof trespassers under s.1 (3) (a), the court did not find that the local authority was or ought to have been aware that the skylights posed any real danger. While the presence of youths by or on the brace was foreseeable, the risk of someone jumping down from the brace onto the skylight was not one against which the local authority might reasonably have been expected to offer protection.

The criminal actions of the claimant did not justify a defence to the claim on policy grounds because, whilst he had committed vandalism and theft when first on the premises, this had stopped by the time he climbed onto the roof. Also, a defence of consent could not succeed, as the claimant would not have known that the skylight would not support his weight.

The judge also made the obiter comment that had a duty been owed by the local authority to the claimant, he would have found against the local authority but assessed the claimant’s contributory negligence at 50%.

 

Comment

• This case illustrates the approach to be taken with regard to ‘engagement’ of the duty of care under the 1984 Act in cases involving trespassers and therefore, the importance of establishing whether the premises are inherently dangerous.
• The duty of care under the 1984 Act was not engaged in this case. The claimant’s injuries arose directly from his own action of jumping onto the skylight. Even though his presence near the skylight ought reasonably to have been foreseen, the local authority did not owe him any duty to control his activity as a trespasser. 
• The judge followed the clear guidance on the meaning and scope of the 1984 Act given by the House of Lords in Tomlinson v Congleton Borough Council [2004] and the case law following Tomlinson, including Keown v Coventry Healthcare NHS Trust [2006] CA. In Keown, a 12 year old child fell on a fire escape while trespassing and it was held foreseeable that children would trespass on the premises and try and climb up the fire escape. However, as the fire escape was not faulty, it was not inherently dangerous and the duty under the 1984 Act was not engaged.
• The facts of the Young case used in the claimant’s argument, have obvious parallels with Buckett - a child falling through a ‘brittle’ skylight, after having climbed up onto the school roof to retrieve a ball. In Young, however, Morison J found for the claimant having found that the state of the premises presented a ‘danger’ and therefore a breach of the 1984 Act. However, this finding was doubted in Keown and HHJ Main in Buckett was of the viewthat Young was a case decided on its own facts and that Morison J’s findings could not be applied to all skylights on roofs.
• Buckett demonstrates the importance of an occupier’s system of maintenance of its premises. It was significant to the decision that the claimant could not establish any defect in relation to the skylight, as had there been any, the duty arising under s1(1)(a) is likely to have been triggered.

Contact

For further information please contact Fiona James.