House of Lords introduced a new duty in British Railways Board v Herrington10.

It was established that occupiers owed a duty of ‘common humanity’ to trespassers known to be present. The duty was a subjective one, in the sense that, when the courts were considering whether it had been broken, it had to take into account the resources of the occupier. The Herrington decision presented many difficulties when deciding to what extent the occupiers should be aware of the presence of the trespasser, how a distinction between burglars and stray children’s be made, and what standards of care and defences could be applied.After many criticisms, the Occupiers Liability Act 1984 came into force, which incorporated the Herrington principle. Section 1(1)(a) of the act provides that an occupier has a duty to persons other than visitors. It is used to determine whether an occupier owes any duty to persons “in respect of any risk of their suffering injury on the premises because of any damage due to the state of the premises or to the thing done or omitted to be done on the premises11”. S1(8) has limited the rights to trespassers as it states that the act only applies to personal injury and does not cover damage to the trespassers property.

Once the relationship of the occupier and trespasser is established, the occupier automatically owes the common duty of care to the trespasser. S1(3) states that the duty only exists where: a) the occupier is aware of the danager or has reasonable grounds to believe it exists; b) the occupier knows or has reasonable grounds to believe that the trespasser either was or might be in the vicinity of danger, and c) the risk is one which in all the circumstances of the case, the occupier may reasonably be expected to offer the other some protection from.This section has a number of problems in the sense that the words ‘has reasonable grounds to believe’ in part c) requires an objective test, which is based on the beliefs of the defendant, whereas the words ‘he knows’ in parts a) and b) requires a subjective test, which is based on the reasonable occupier. The requirement is easily satisfied where the occupier knows or is aware of the primary facts but fails to prevent the danger. However, difficulty arises in a situation where the occupier is unaware of the primary facts in circumstances where the reasonable occupier would have been aware.In White v St Albans City ; District Council12 the plaintiff took a short cut across the defendant’s land and fell down a trench which he had not seen. The defendant was aware of the danger so the plaintiff could satisfy s1(3)(a).

The difficulty arose over the interpretation of s1(3)(b). The plaintiff argued that s1(3)(b) suggests that once it was demonstrated that the occupier had taken steps to prevent people getting into his land, it automatically meant that the occupier had reasonable believe that someone was likely to come into the vicinity of the danger.The courts rejected this argument and held that the vital question was whether the occupier had ‘reasonable grounds’ to believe that someone would come into the vicinity of danger. Problems that also arise in cases are the issues of what amounts to ‘reasonable grounds to believe’ that a risks exists and ‘reasonable grounds to believe’ that a trespasser will or may be in the vicinity. In Swain v Puri13, the claimant, a nine year old boy, fell from the defendant’s factory roof, where he was trespassing.The boy argued that there was reason to believe that children would climb the roof, and the defendants were therefore in breach of their duty as they had not made sufficient efforts to keep children away.

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The Court of Appeal disagreed stating that as there was evidence of previous trespass, there were no reasonable grounds to suspect that trespassers might enter and try to scale the roof. The court held that the phase reasonable to believe meant “that the defendants had to have actual knowledge of relevant facts which provided for grounds for such a belief; it did not mean ought to have known14”.S1(4) deals with the extent of duty of care required and provides that “to take such care as is reasonable in all circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger concerned15”. A question arises as to the duty of cared owed to non-visitors who are engaged in criminal activities. In Revill v Newberry16, it was held that s1(4) applied to such situations, and a trespasser could claim for injuries suffered injury from the use of force which exceeded reasonable limits.When establishing to what extent duty exists the court will also need to consider the age of the entrant, the nature of the premises, the likelihood of the injury and the foreseeability of the entrant. The more likely the presence of the non-visitor, the more precautions are required.

S1(5) points out that the occupier can discharge the duty by taking reasonable steps, such as giving warning signs. Whether such a warning will discharge the duty will depend on the age of the entrant.There is a problem where the entrant is a child as the child may be unable to read or unable to appreciate the damage. Where the entrant is an adult the warning will normally be successful. S1(6) preserves the defence of volenti. It states that no duty is owed to any person who willingly accepts risks. The general rule that has to be established is that the claimant consented to the risk and agreed that if he/she was injured, the loss should be theirs and not the defendants.

In the case of trespasser, the courts have adopted an objective test of agreement.Where the plaintiff is an adult, then knowledge of the risk accompanied by the entry of the land results in the trespasser being volenti. The 1984 Act does not state whether the duty can be excluded by the occupier. If the exclusion is possible, then such exclusions would not be subject to the Unfair Contract Terms Act 1997 as it is to be applied only to the old common law and the 1957 Act. Therefore whether an occupier can exclude the duty under the 1984 Act is still open to question.