Considering the duties owed to trespassers

A recent Court of Appeal decision looked at the duties owed to trespassers. In the case of Paul Tyrone Mann v Northern Electric Distribution Ltd [2010], the claimant, a minor, had been electrocuted when he climbed into an electricity substation owned and occupied by the defendant. The claimant alleged that the defendant was in breach of the Electricity Supply Regulations 1998, which required the substation to be surrounded by a fence of no less than 2.4 metres in height, so far was as reasonably practicable.

The substation was actually surrounded by a four-metre-high perimeter wall. There was then a brick buttress and steel railings extending out at 90º. These railings were two metres tall and were topped with a cross bar. The evidence was that the claimant had climbed on top of the cross bar, reached the top of the buttress with the assistance of a makeshift assembly of pieces of wood and that he had gained access to the inside of the sub-station via the roof of the control room, having jumped over a rotating anti-climb device.

The claimant contended that the height of the wall failed to satisfy the requirements of the regulations because the defendant had failed to apply rotating anti-climb devices to all sides of the top of the buttress when it would have been practicable to do so. The defendant argued that the regulations did not require it to take additional measures above and beyond the erection of the fence.

It was found that, while it was foreseeable that a person might climb onto the cross bar, it was not foreseeable they would go the extra distance. The claimant appealed and the Court of Appeal found that whether the defendant had erected a fence high enough to discharge its statutory duty depended on whether the fence would fail to prevent unauthorised access.

The judge was right to find that it was unforeseeable that the claimant would climb from the cross-bar to the top of the buttress and that he would use pieces of wood to do so. It was not practicable for the defendant to take further steps to prevent him entering the substation.

The claimant’s appeal was dismissed. This is a welcome decision for insurers. Where the insured can show that it has taken all reasonable steps to keep a trespasser off its premises, this will be sufficient to defeat a claim, even where the trespasser gains entry. IT

Laura Collins is a solicitor in the casualty unit at Langleys