Can You Still Make a Personal Injury Claim If You Were Trespassing? A Brief Guide for Potential Claimants
Understanding the Occupiers’ Liability Act 1984
A common misconception in personal injury law is that a person cannot bring a claim if they were trespassing at the time of an accident. In reality, the law does allow trespassers to claim compensation in certain circumstances.
The Occupiers’ Liability Act 1984 sets out when landowners and occupiers owe a duty of care to people who are not lawful visitors. While the duty is more limited than that owed to visitors, it is not excluded altogether. Our experienced Personal Injury team, headed by Anna Rushton, regularly advise clients who were injured while trespassing and are unsure whether they have any legal rights to pursue a claim.
This article explains when a claim may still be possible and how the courts approach these cases.
The Legal Position of Trespassers
A trespasser is someone who enters land without the occupier’s permission or exceeds the permission they were given. This can include:
- Entering private land without consent
- Accessing restricted areas of public land
- Remaining on premises after permission has been withdrawn
Historically, trespassers were owed very little legal protection. However, the law has evolved to recognise that occupiers may still owe a duty of care in certain situations.
The Occupiers’ Liability Act 1984
The Occupiers’ Liability Act 1984 governs the duty owed by occupiers to non-visitors, including trespassers. The duty arises only where three statutory conditions are met:
- The occupier is aware of the danger or has reasonable grounds to believe it exists
- The occupier knows or has reasonable grounds to believe that a trespasser may come into the vicinity of the danger
- The risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer protection
If these conditions are satisfied, the occupier must take reasonable steps to prevent injury.
What Does “Reasonable Steps” Mean?
The Act does not require occupiers to guarantee safety or eliminate all risks. Instead, the duty is to act reasonably in the circumstances.
This may involve:
- Providing clear and visible warning signs
- Fencing off particularly dangerous areas
- Removing or reducing hazards where practical
- Taking additional precautions where children are likely to trespass
The courts will consider the nature of the risk, the cost and practicality of preventative measures, and the likelihood of trespass occurring.
Obvious Risks and Personal Responsibility
A key theme in trespasser claims is the concept of obvious risk. The courts have consistently held that occupiers are not required to protect individuals from dangers that are clear and inherent, particularly where the risk arises from the claimant’s own actions.
Cases such as Tomlinson v Congleton Borough Council [2003] demonstrate that where a person knowingly engages in risky behaviour, liability is less likely to arise. However, this does not mean that all trespasser claims will fail.
Claims may still succeed where:
- The danger was hidden or not obvious
- The occupier created or failed to address a serious hazard
- The injured person was a child or otherwise vulnerable
Children and Trespassers
The courts take a more protective approach where injured trespassers are children. Occupiers are expected to recognise that children may be drawn to certain hazards and may not fully appreciate the risks involved.
In these cases, occupiers may be required to take greater precautions, particularly where:
- The land is near residential areas or schools
- The hazard is especially attractive to children
- Trespass by children is frequent or foreseeable
Each case will depend heavily on the specific facts.
Can a Trespasser Still Recover Compensation?
Yes, but compensation may be reduced if the injured person contributed to the accident. The courts can apply contributory negligence, reducing damages to reflect the claimant’s own responsibility.
For example, if a trespasser ignored warning signs or deliberately engaged in dangerous behaviour, any compensation awarded may be reduced accordingly.
Time Limits for Trespasser Injury Claims
Claims under the Occupiers’ Liability Act 1984 are subject to the standard three-year limitation period, running from the date of injury. Different rules apply for children and individuals who lack mental capacity.
Early legal advice is essential to preserve evidence and assess whether the statutory conditions are met.
How Our Personal Injury Team Can Help
Trespasser injury claims are often complex and fact-sensitive. Our adroit Personal Injury solicitors have extensive experience in claims under both the Occupiers’ Liability Acts 1957 and 1984.
We carefully assess whether the statutory duty arises, consider potential defences such as obvious risk and contributory negligence, and provide clear, realistic advice on prospects of success.
If you have been injured while trespassing and are unsure whether you can bring a claim, our team can help you understand your legal position and next steps.
Summary
Being a trespasser does not automatically prevent you from making a personal injury claim. The Occupiers’ Liability Act 1984 recognises that occupiers may still owe a duty of care in certain circumstances, particularly where serious hazards are known and foreseeable.
Understanding how the courts balance risk, responsibility and fairness is key to assessing whether a claim is viable. Our Personal Injury team is well placed to guide you through this process and provide expert advice tailored to your own circumstances.
Contact us on 01270254064 or email us via enquiries@steplegal.co.uk to start your journey in securing justice and accountability today.
