The Risk and Burden of Being a Trespasser - Helen Tinkler, CILEx Law School, Bar Standards Board and Whatley Weston & Fox
07/07/15. The Occupiers' Liability Act 1957 provides that its rules have effect in place of the rules at common law. This encourages a temptation to overlook the obvious derivation of the statutory rules from the common law. But to be successful in any claim arising from an occupiers' liability, whether to a visitor or a trespasser, the burden of proof rests with the claimant (ignoring res ipsa loquitor), to prove three things: a) that the defendant owed a duty of care, b) that the defendant breached the duty of care and c) that the breach of duty of care caused damage to the claimant - in effect, the same tests to establish negligence.
Under the OLA 1957, the claimant starts from an advantage as the existence of a duty of care is already established - (s.2(1) and (2)(2)). For a trespasser, bringing a claim under the OLA 1984, there is no such advantage and no avoiding the need to establish the existence of a duty of care. So found Thomas Buckett in the recent case of Buckett v Staffordshire County Councilcase no 3SO90263). Buckett, aged 16 at the time of the accident, was trespassing with friends on a school roof on a Sunday afternoon. Having jumped onto a skylight, he went through it and suffered a severe head injury in the fall. What is engaging about the case is that much of the...
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