WHAT TRESPASSER MUST PROVE TO WIN CASE

For such a claim to succeed the trespasser would have to show that the shopkeeper/ occupier owed him a duty of care; that he breached that duty of care resulting in the injury, and the occupier was negligent or acted with ‘reckless disregard’ for the injured party or intentionally caused harm.

Crucially, Section 4.1 of the occupiers’ Liability Act 1995 – which deals with the duty of care owed to trespassers – states that where a person enters the premises for the purpose of committing an offence, the occupier shall not be liable, save in certain circumstances. Given that the trespasser in this case was convicted of the offence, this section would come into play.

Under the Act, in determining whether the occupier acted with reckless disregard, the court would assess whether he had ‘reasonable grounds’ for believing the trespasser was on the premises but also whether there was a danger on the premises likely to cause injury.

In other words, the occupier would have had to foresee (a) that the trespasser was going to be on the premises and (b) that a danger existed.

Last year the High Court threw out a claim for damages by a child trespasser who was injured when he tripped on a kerb on the grounds of a public building after getting over the wall. The court said the only duty of the occupier was not to cause intentional injury and they did their best to secure the premises. The court added that the kerb was not a hazard, the gates were locked and the child was ‘not supposed to go in’.