Am I A Visitor Or Trespasser, And Does It Matter?

Visitor Or Trespasser? – Why it Matters

If you have an accident on private property, you are often entitled to claim compensation if the owner of the property has been careless. This is so even if you are a trespasser, and do not have permission to be there. However, it is vital that you understand the difference. The duty owed to you is different depending on your status, and could determine the success or failure of your claim.

Liability Towards Visitors

The legislation governing the duty of care owed to visitors is the Occupiers’ Liability Act 1957. It adopts the common law definition of occupier as the person who has most control over the property, and then goes on to define a ‘visitor’ as any person whom the occupier has permitted to enter or use the premises. This also includes anyone who is on the premises in order to carry out a legal right or duty, such as a police officer in certain circumstances. Importantly, someone who is a visitor for one purpose can become a trespasser for another. As Lord Justice Scruton memorably put it, “when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters”!

The effect of being a visitor is that the duty of care owed to you is a wide ranging one. The occupier must take all reasonable care to see that you are safe in the premises for the purpose you are there. Special duties of care are owed to children, who cannot be expected to be as careful as adults, although professionals are assumed to know what they are doing when they are about their business. In other words, an electrician cannot sue an occupier if he electrocutes himself whilst working, even if he is a ‘visitor’.

Liability Towards Trespassers

Many people are not aware that, in certain circumstances, a trespasser is also able to sue an occupier for any injury suffered whilst on private property. This is governed by the Occupiers’ Liability Act 1984, but on even a cursory reading of the legislation it is obvious that it is always best to argue that you were a visitor if at all possible. This is because the duty of care owed to trespassers by the occupier is, unsurprisingly, less extensive. Whilst the duty owed is much the same as with visitors, it only applies in certain circumstances. Specifically, the occupier must know that a danger exists, have some knowledge that a trespasser is likely to come into contact with it, and needs only to do what is reasonable in the circumstances to protect that trespasser. From this, it rapidly becomes evident that if you can define yourself as a visitor in your negligence claim, you most certainly should do so!

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