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A trespasser injured on site can prosecute

LAW

A landowner or occupier of a site is responsible for ensuring the safety of non-employees, trespassers and particularly children. Failure to do so can land them in court, writes James Bell

AS THE summer holiday season draws to a close and children go back to school, many contractors will heave a sigh of relief. Each year there is a handful of deaths and several hundred injuries to trespassers on building sites - both children and adults. Even though the injured party was trespassing - perhaps even with criminal intent - the occupier of the site often finds itself in court facing charges. And these can be difficult cases to defend, whether in criminal or civil proceedings.

The criminal law is governed by the Health and Safety at Work Act 1974, while in civil law there are two Occupiers' Liability Acts. The first of these was brought into law in 1957 and requires the occupier of premises to take all reasonable care to ensure the safety of visitors while they are using the premises for the purpose for which they have been permitted or invited to be there.

A further Occupiers' Liability Act, introduced in 1984, extended the duty of care to cover trespassers.

On July 31 2003, the House of Lords considered a claim by an 18-year-old man, John Tomlinson, who brought an action against Congleton Council and Cheshire County Council, owners of a heath and lake on which he had trespassed.

Mr Tomlinson had dived into the shallow lake and suffered a severe head injury as a result. He sued the local authorities and, as he was regarded as a trespasser, brought the action under the Occupiers' Liability Act 1984.

The heath was an area known to be popular with members of the public and the lake had been used for several years by the local community. But signs had been erected all around the lake, some advising that swimming was dangerous and others simply warning: 'No swimming'. Despite this, Mr Tomlinson dived in and received his injury.

In court, Mr Tomlinson's lawyers argued that a sign simply warning that swimming was dangerous and that members of the public should not swim there was not sufficient to absolve the council of any responsibility.

Naturally, the local council defended the action, insisting that Mr Tomlinson was the author of his own misfortune.

The claim proceeded in the High Court and thereafter to the Court of Appeal. Here it was decided Mr Tomlinson was a trespasser but the councils owed a duty of care to him. The appeal court decided it was correct that damages be awarded to Mr Tomlinson, but ordered they should be reduced by two-thirds to reflect his own recklessness.

The local councils took their case to the House of Lords, where it was agreed this was an important matter which went to the heart of the Occupiers' Liability Act.

The House of Lords considered the vast array of case law on this subject and, in one of the most detailed decisions ever given in this area of law, they decided against Mr Tomlinson.

There are some features of this case which have a significance for occupiers generally. In particular, the Lords ruled it was sufficient for the council to erect a sign simply advising visitors to the lake that swimming was dangerous and prohibited.

They also rejected the suggestion the council should have landscaped or fenced off the lake.

Lord Hoffman stated the accident did not arise 'because of the state of the premises. . . but rather because the claimant had chosen to indulge in an activity which is inherently dangerous'. The local councils were not under any duty to protect the reckless minority against obvious dangers.

Trespassers injured on dangerous building sites would be well advised to consider this judgement carefully before bringing a claim. The Tomlinson case suggests the court will take account of the claimant's recklessness.

The councils had been warned of previous neardrowning incidents. Having considered a costbenefit analysis of fencing and landscaping, they decided not to take any remedial action.

This judgement will be an indication to landowners and occupiers that they are not required to spend excessive sums of money in fencing or landscaping large parts of open land under their ownership or control. But it should be noted this relates solely to claims by adults.

Contrast this case with the Court of Appeal's decision in Jolley v Sutton London Borough Council (2000). This case concerned a 14-year-old boy injured by a small boat which had been abandoned in the grounds of a block of flats owned and occupied by the local authority. The council knew about the boat but failed to remove it.

The boy was playing on and around the boat, which had been propped up on bricks, when it fell on top of him, inflicting severe injuries. The claimant brought an action under the Occupiers' Liability Acts of 1957 and 1984.

The House of Lords found the ingenuity of children in their play made it likely that they would be attracted to the boat and that there would be a risk of serious injury. It therefore found in favour of the claimant and decided the local authority was liable.

The message appears to be that, if something attractive but potentially dangerous is left accessible to children, then the occupier of land will be liable for creating such a danger. In the Jolley case, it was clear the council had been aware of the danger for a considerable period of time and had failed to take any responsible action.

These two cases provide valuable instruction for contractors and other occupiers of construction sites. And it should be noted that occupiers of such sites have additional duties under the criminal law - namely the Health and Safety at Work Act 1974 - to ensure the safety of non-employees. Section 3(1) of the Act states: 'It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby, are not thereby exposed to risks to their health or safety.'

Key Points

In the Tomlinson case, it was sufficient to warn adult trespassers of the obvious dangers.

In the case of Jolly, the presence of a hazard on easily accessible land was found to be negligent. The claimant would not have won the case if he was an adult.

The longer a danger is left, the more likely liability will arise.

Occupiers of construction sites have an additional responsibility to ensure the safety of non-employees.