Occupiers' duty to trespassers and no recovery for property damage (Occupiers' Liability Act 1984 s.1(3), (4) and (8))
Brightwell Homes Ltd occupies a fenced building site. Its security reports show that, for several weeks, young adults have been climbing through a gap in the fence at night to use the site as a shortcut, and the company has done nothing about it. One evening in May 2026 workers left a deep trench uncovered and unlit across the usual route, with no warning sign. Marcus Bell, aged 22, climbed through the gap in the dark, fell into the trench and broke his leg. His mobile phone was smashed in the fall.
Which of the following best describes Brightwell Homes Ltd's potential liability to Marcus?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: It is likely to owe Marcus a duty under the 1984 Act for his injury, but he cannot recover for his phone under that Act.
THE RULE TO REMEMBER
An occupier owes a trespasser a duty of reasonable care against injury only where the three conditions in OLA 1984 s.1(3) are met, and that duty never covers damage to the trespasser's property (s.1(8)).
Occupiers' duty to trespassers and no recovery for property damage (Occupiers' Liability Act 1984 s.1(3), (4) and (8))
Liability to trespassers is governed by the Occupiers' Liability Act 1984. Under s.1(3) an occupier owes a duty to a non-visitor if (a) it is aware of the danger or has reasonable grounds to believe it exists, (b) it knows or has reasonable grounds to believe the other is in, or may come into, the vicinity of the danger, and (c) the risk is one against which it may reasonably be expected to offer some protection. Brightwell's own workers created the trench, its security reports showed regular night-time intruders on that route, and an unlit, unguarded deep trench is a risk against which some protection (cover, lighting or a warning) could reasonably be expected. The duty under s.1(4) is to take reasonable care to see that the trespasser does not suffer injury by reason of the danger. However, s.1(8) provides that breach of the 1984 Act duty gives no liability for loss of or damage to property, so the phone is not recoverable under the Act.
Why A is wrong: The 1984 Act imposes a duty to non-visitors where the s.1(3) conditions are satisfied.
Why B is wrong: The 1957 Act common duty of care is owed to visitors, not trespassers like Marcus.
Why C is wrong: The s.1(3) duty is not confined to children, and willing acceptance of risk under s.1(6) is not shown.
Why D is wrong: Section 1(8) bars recovery under the 1984 Act for loss of or damage to property such as the phone.
That's today's practice done. Another featured question tomorrow.
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