Obligation towards Trespassers

A trespasser has been defined as “one who goes upon land without invitation of any son and whose presence is either unknown to the proprietor, or, if known, is particularly objected to.” Thus, a trespasser is a person who enters into another’s property without any right or permission.

The general rule is that there is no duty of care towards a trespasser. He who enters wrongfully does so at his own risk in all respects. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser [Robert Addie & Sons v Dumbreck (1929) AC 358]. Thus, he must avoid endangering the safety of trespassers by concealed dangers in the nature of a trap, or such as would be likely to punish intruders in a cruel manner, viz. naked live electric wire (Cherubin v State of Bihar AIR 1964 SC 205), or setting up spring guns [Bird v Holbrook; Illot v Wilkes]. Only reasonable force can be used to expel the trespasser from the premises, viz. use of spikes or broken pieces of glass on the top of the wall.

The decision of the Madras High Court in Ramanuja Mudali v. M. Gangan, A.I.R. 1984 Mad. 103. explains the nature of liability, of the land owner even towards a trespasser for the concealed danger created by the former. In that case, the defendant laid some live electric wire on his land without any visible warning. The plaintiff, who was passing through that land at 10 p.m. to reach the land under his own cultivation, could not observe the wire, as there was no light in the area. He came in contact with the wire and was injured.

It was held that it is the duty of the land owner to make it known if he has to lay a live wire as a sort of fence and as he failed to do so, he was liable for the damage caused thereby.

In Cherubin v. State of Bihar, A.I.R. 1964 S.C. 205. The appellant had fixed naked electric wire, fully charged with electricity, across the passage to his latrine to prevent trespassers from using the same. No warning, regarding the wire being live, was given. This naked wire caused the death of a person who visited the latrine. In an action against the appellant under Sec. 304, I.P.C. for causing the death of a visitor, it was contended that the deceased, being a trespasser, the occupier owed no duty to him and the act of the appellant was not actionable. The Supreme Court rejected the contention of the appellant and holding the appellant liable stated: It is, no doubt, true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time, the occupier is not entitled to do wilful acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to the trespassers or in reckless disregard of the presence of the trespassers.”

In British Railway Board v Herrington (1972) 1 All ER 749 (HL), holding the Railway Board at fault and liable in allowing the fence in a broken down condition having regard to the dangerous nature of the live rail and its perils for a small child, the court ruled that if the presence of the trespasser was known to or reasonably to be anticipated by the occupier, then the occupier did owe to the trespasser a duty to treat him with ordinary humanity which was a lower and less onerous duty than a general duty of care or the common duty of care owed to lawful visitors.

Herrington’s case influenced the enactment of the Occupiers Liability Act, 1984 which imposes duty towards trespassers if the following conditions are satisfied: (a) the occupier should have knowledge of the existence of the danger on his land, (b) that the entrant is in the vicinity of danger, and (c) the risk is such that it can be reasonably expected that the occupier should provide him some help. The Herrington’s case was considered in Kumari Alka v Union of India (AIR 1993 Del 267).

In British Railway Board v Herrington (1972) 1 All ER 749 (HL), holding the Railway Board at fault and liable in allowing the fence in a broken down condition having regard to the dangerous nature of the live rail and its perils for a small child, the court ruled that if the presence of the trespasser was known to or reasonably to be anticipated by the occupier, then the occupier did owe to the trespasser a duty to treat him with ordinary humanity which was a lower and less onerous duty than a general duty of care or the common duty of care owed to lawful visitors.

Herrington’s case influenced the enactment of the Occupiers Liability Act, 1984 which imposes duty towards trespassers if the following conditions are satisfied: (a) the occupier should have knowledge of the existence of the danger on his land, (b) that the entrant is in the vicinity of danger, and (c) the risk is such that it can be reasonably expected that the occupier should provide him some help. The Herrington’s case was considered in Kumari Alka v Union of India (AIR 1993 Del 267).

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