Since the duty of an occupier towards a trespasser was based not on the relationship forced upon him but on consideration of humanity, the occupier’s duty only arose if he had knowledge of or had created the danger on his land; that no unreasonable burden was to be placed on an occupier and accordingly an occupier was entitled to consider all the disadvantages to himself in taking action for the protection of trespassers and weigh them against the degree of likelihood of trespassers and the degree of hidden or unexpected danger to which trespassers may be exposed: ‘If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realise the danger he may have to do more. There may be difficult cases where the occupier will be hampered in the conduct of his own affairs if he has to take elaborate precautions. But in the present case it would have been easy to prevent the development of the dangerous situation which caused the plaintiff’s injuries. The more serious the danger the greater is the obligation to avoid it. And if the dangerous thing or something near it is an allurement to children that may greatly increase the chance that children will come there.
Next comes the question to whom does the occupier owe a duty. Their Lordships have already rejected the view that no duty is owed unless the advent of a trespasser is extremely probable. It was argued that the duty could be limited to cases where the coming of trespassers is more probable than not’
Lord Reid said: ‘Next comes the question to whom does the occupier owe a duty. Their Lordships have already rejected the view that no duty is owed unless the advent of a trespasser is extremely probable. It was argued that the duty could be limited to cases where the coming of trespassers is more probable than not. Their Lordships can find neither principle nor authority nor any practical reason to justify such a limitation. The only rational or practical answer would seem to be that the occupier is entitled to neglect a bare possibility that trespassers may come to a particular place on his land but is bound at least to give consideration to the matter when he knows facts which show a substantial chance that they may come there.’
Judges:
Lord Reid
Citations:
[1974] AC 623, [1974] 2 WLR 152, [1974] 1 All ER 87
Jurisdiction:
England and Wales
Cited by:
Cited – Rose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Land
Updated: 05 May 2022; Ref: scu.278319
