A trespasser is someone who:

  1. Has no legal right to be on the premises
  2. Has not been invited to the premises
  3. Has no implied permission to be on the premises – such as the person who stays behind after a shopping centre closes. In the example provided, the person strayed from being a lawful visitor to an unlawful visitor or trespasser when the shopping centre closed with them still inside the building.

Trespassers may be persons in or on premises who know they have no right to be there or accidental trespassers who don’t realise they shouldn’t be on the premises.

The Occupiers Liability Act 1984 addresses whether an occupier owes a duty of care to trespassers, and Section 1(3) of this Act of Parliament provides the answer. In a nutshell:

  1. An occupier of premises owes a duty of care to trespassers on their premises if:
  2. The occupier knows or ‘has reasonable belief’ there is a risk to the safety of trespassers on their premises.
  3. The occupier knows or has reasonable grounds to believe that the unlawful visitor is, or may stray into, the area of danger.
  4. Knowing all the circumstances, the occupier should have reasonably foreseen the existing risk and taken action to avoid the trespasser getting injured.

So, occupiers owe a duty of care to trespassers, but only if certain conditions are met, i.e., the occupier knows or ought to know there is an existing risk.

Contrast this with the duty of care owed to lawful visitors, which is ‘a duty of care to all their lawful visitors, to take such care as is reasonable, to ensure the visitor will be reasonably safe.’