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Does occupiers’ liability apply to trespassers?

If you occupy a property that you own or rent, you have a ‘common duty of care’ towards visitors under the Occupiers’ Liability Act 1957, commonly known as occupiers’ liability.

This means that you must ensure the property is reasonably safe, particularly if your property carries obvious risks or children will be visiting.

In practice, this means that any risks you are aware of should be repaired or suitably indicated, and you should regularly work to identify any new risks. The aim is to minimise the potential for someone to come to harm while on your property.

If you fail to do so, visitors may suffer an injury as a result of an unsafe feature – and you could be liable for compensation under a civil claim.

These regulations apply to any person lawfully visiting your property – which, in some cases, can include trespassers.

When does occupiers’ liability apply to trespassers?

It is a common misconception that occupiers’ liability is not applicable at all when someone is trespassing on your property – understandably, as they do not have permission to be there, nor were you likely aware that they were coming.

However, remember that trespassing isn’t usually a criminal offence in the UK, so this may not be a suitable defence if something does happen to a trespasser.

The Occupiers Liability Act 1984 extended the common duty of care towards trespassers in certain circumstances.

Occupiers’ liability still generally applies to trespassers if there are dangers that you are, or should be, aware of.

Additionally, it may apply if you are aware that your property is at increased risk of trespassing – such as farmland or land near a popular walking spot.

It can be construed that you were aware of the risk of someone trespassing and did nothing to prevent them from coming to harm from a known risk, such as an unstable structure.

When trespassing does become a criminal matter, such as when trespassers attempt to carry out illegal activity on your land or try to obstruct or intimate you or your guests, you may be able to defend occupiers’ liability claims more successfully.

Occupiers’ liability in practice

It can seem counterintuitive that you have a duty of care towards trespassers on your property, and that you can be held responsible for injury incurred to them while on your property.

However, trespassing is not always done intentionally or with criminal intent. To illustrate this more clearly, consider the following example:

A hiker arrives on your land and accidentally diverts from a public right of way, that you know runs just behind your property. This has happened multiple times previously.

They are at the edge of your farmland and so you don’t notice them and can’t ask them to go a different way.

On their way through your land, they come across an old building that you know to be unsafe but have not taken steps, such as a warning sign or repairs, to make secure. While they are passing by, part of it collapses and causes them to be injured.

This example illustrates why compliance with occupiers’ liability regulations is important. Key things to take away from this scenario are that:

You were aware that trespassing was a likely and recurrent issue
You were aware that the danger existed and had not taken steps to resolve it
The trespasser was not undertaking illegal activity
Their injury was, arguably, a direct result of action not being taken

In this case, the trespasser may make a civil claim under the Occupiers’ Liability Act. You could be financially liable for compensation, damages and other costs.