The duty of care owed by owners and occupiers of premises is a statutory duty imposed by the Occupiers Liability Acts 1957 and 1984. By virtue of the Occupiers Liability Act 1957, the duty of care imposed on occupiers is a duty in respect of all visitors to the premises in question.
The duty of care is a common duty. The Occupiers Liability Act 1984 imposes a limited duty of care in respect of persons who are not visitors. In general the 1984 Act requires that an occupier take reasonable steps to prevent injury to trespassers in circumstances where a know danger exist on the premises in question.
The duty of care owed by Ahmed as the owner and occupier of the farm land to Ali is regulated by the Occupiers Liability Act 1984. Section 1(1)(a) sets out that a duty of care is owned by the owner or occupier of premises to persons who are not visitors in respect of injuries sustained on the premises in question if the injury is caused by a danger existing on the premises at that time.
However, Section 1(3) limits that duty of care as follows:- ‘An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if:- a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether he has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. ’
Prior to the Occupiers Liability Act 1984, an occupier of premises did not owe a duty of care in respect of trespassers. The duty of care existed at common law and was so narrow as to virtually exclude all classes of trespassers or uninvited visitors. Lord Hailsham had defined that duty in very absolute terms when he said that ‘towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger…The trespasser comes onto the premises at his own risk’ .
However, Lord Hailsham went on to concede that an occupier could be liable in circumstances where the injury sustained was a result of a willful act calculated to cause harm to a trespasser. Therefore in order for an occupier to have been liable for harm sustained by a trespasser, the plaintiff was required to show that the occupier took steps or conducted himself ‘…with the deliberate intention of doing harm to the trespasser or…at least reckless disregard of the trespasser’s presence’. In Glasgow Corp v Taylor  1 AC 44 the court’s approach appeared to have been tempered by public policy considerations.
In this case, a seven year old boy died having ingested poisonous berries in a botanical garden. The court held that in this case, the berries could have acted as an inducement to children and as such operated to classify the child in question as an implied licensee. This was so even though the child had wandered outside of the area in the garden where he was permitted to enter. The break through in respect of the duty owed to trespassers only applied to children but with limited application.
Section 2(3)(a) of the Occupiers Liability Act 1957 provides that ‘an occupier must be prepared for children to be less careful than adults’. A trend in favor of children who are unlawful visitors to premises continues today. In a recent case, Lord Hoffman observed that children have an ‘…ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated. ’ In a 1972 case the general attitude toward trespassers changed to an extent that the occupier was under a duty that went beyond a bar to essentially setting man traps.
In Herrington v British Railways Board  AC 877 the House of Lords held that the decision in Addie Roberts was no longer good law and the occupier’s duty of care in respect of trespassers was one of ‘common humanity. ’ In other words the court must be satisfied that the occupier had taken all steps humanely possible to avoid harm to any foreseeable trespasser. In the Herrington case a six year old child had somehow slipped through a gap in a fence that bordered the railway tracks.
The British Railway Board as occupiers were previously aware of incidents of trespasser, but had failed to repair the gap in the fence. The child was injured while playing on the railway tracks and the board was held liable for those injuries on the grounds that the occupier of premises owed a duty of common humanity to trespassers. Following this case, the Law Commission in its Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability in 1976 recognized that there was a need for statutory intervention in respect of trespassers.
Following some recommendations the Occupiers Liability Act 1984 was legislated. Be that as it may, the courts are still generally unsympathetic in their attitude toward adult trespassers. The attitude expressed by Lord Sumner in Glasgow Corp v Taylor  appears to prevail. In that case Lord Sumner said, ‘a measure of care appropriate to the inability or disability of those who are immature …is due from others who know of or ought to anticipate the presence of such persons within the scope and hazard of their own operations’.
This is the background against which the respective rights and duties of Ali and Ahmed must be considered. Older children and adults are not accorded the kind of sympathy bestowed on very young children In fact the steady stream of authorities agree that in general, an occupier has no duty to warn a trespasser of the risk associated with his property in circumstances where the risk was appreciable. A trespasser was and is required to use common sense. Remoteness of harm and the social and economical cost of reducing the risk of harm are applicable in cases in which a claim for negligence is filed.
In Overseas Tankship (UK) Ltd v Miller Steamship Pty Ltd (The Wagon Mound (No. 2)) Lord Reid said, ‘In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship’s engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately. ’
This was the position taken by the House of Lords in recent cases on the question of occupiers’ liability under the provisions of the Occupiers Liability Act 1984. Lord Hoffman said in Tomlinson v Congelton Borough Council et ales (2003) UKHL 47 that the question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures.
These factors have to be balanced against each other. ’ Ahmed’s liability will therefore be assessed with reference to the cost of taking preventative measures against the degree of risk posed in the absence of taking such measures. The social value in respect of the windmill is one which is beneficial to Ahmed and employees he might have secured for the construction of the windmill and operation of it upon completion. However, since the construction of the windmill was abandoned indefinitely its social value was and is tenuous at best.
It would have cost Ahmed very little in terms of money and time to cordon off the area or to post a warning sign next to it. When this is weighed against the seriousness of injury one might expect of a person falling into the hole, Ahmed cannot escape liability. However, the matter does not end there. The courts are required to take into consideration, the conduct of the plaintiff, in this case Ali’s conduct. Several decisions by the House of Lords lend some useful guidelines in this respect.
In Tomlinson v Congelton, the House of Lords referred to an unreported case, Scott v Associated British Ports (2000) in which two boys between the ages of 14 and 15 went ‘train surfing’. The activity involved jumping onto a train and back off again. Both boys sustained very serious injuries as a result to the ‘train surfing’ activities. On the fact of the case it was discovered that no fences had been erected. Following the incident the occupiers erected fences but based on their evidence, the fences did not keep trespassers off the property.
The court ruled that it was satisfied that having regard to the evidence that whether or not fences had been erected it would not have kept the boys away from the trains. In another case the plaintiff’s behavior was referred to as stupid. Ratcliff v McConnell  in this case a student, Luke Ratcliff, a student climbed over a fence at 2. 30 in the morning in the month of December and took a dive into a pool at the shallow end. No duty of care existed in this case as a warning could not have warned Ratcliff of any danger that he already knew of.
Certainly he should have been aware of the inherent danger of diving into the shallow end of the pool and it was a risk that he subscribed to without inducement or without knowledge. In Donoghue v Folkstone Properties Ltd.  John Donoghue took a dive into the Folkstone Harbour at midnight after leaving the pub. Lord Phillips reflecting on the earlier case of Tomlinson v Congelton said that ‘what was at issue in the case was whether the Council should have taken steps which would have prevented Mr Tomlinson from entering the lake, that is, whether a duty of care was owed to him before he did the unauthorised act.
In the Donoghue case as well as Tomlinson case the main issue was whether or not the unauthorized activity presented the danger or the state of the premises. In both cases the conclusion was the same. The plaintiffs in both cases undertook recreational activities that involved inherent dangers which both of them should have in all the circumstances been aware of. Ali’s case can be distinguished from the facts and findings of the cases discussed above on the imposition of a duty of care by virtue of the Occupiers Liability Act 1984.
Lord Sealy said the duty owed to trespassers exist ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability. ’ The gaping hole on Ahmed’s property was obscured by a grassy growth and it was therefore not obvious. Ahmed’s sign at the gate did not warn of the inherent danger of the hole on the property. It merely stated that the property was private and warned trespassers to stay away. However, given the circumstances that led Ali to enter the property, looking for directions, it can be argued that he was not a trespasser, but an authorized visitor.
Even as a trespasser it is difficult to conclude that Ahmed did not owe persons such as Ali a common duty of care. As Lord Hoffman pointed out ‘The 1984 Act provides that even in such cases a duty may exist, based simply upon occupation of land and knowledge or foresight that unauthorised persons may come upon the land. ’ Ali was not seeking some risky recreational pursuit, he was seeking help and certainly the 1984 Act is intended to extend the duty of care to trespassers such as Ali.