Judges, child trespassers and occupiers’ liability in the built environment

This paper analyses how the doctrine of occupiers’ liability for the safety of child trespassers has been developed in English Law over the last 100 years by applying Pierre Bourdieu’s theorising on the operation of the ‘juridical field’ (Bourdieu 1987). The analysis traces the evolution across the ‘no duty’ dictum of Robert Addie & Sons (Collieries) –v- Dumbreck (1929) , the ‘duty of humanity’ advanced in British Railways Board –v- Herrington (1972) , the qualified duty of care introduced by the Occupiers Liability Act 1984 following the Law Commission, Report on Liability for Damage or Injury to Trespassers, Cmnd 6428 (1976) and the subsequent interpretation of that duty in case law such as Tomlinson –v- Congleton Borough Council (2002) and Mann v Northern Electric Distribution Ltd (2010) . The paper analyses the ways in which the judiciary’s operation as an ‘interpretive community’ (Fish, 1980; 1989) has steered this evolution and the ways in which external, supra-juridical, factors have also influenced how occupiers’ liability law has been interpreted and applied. The analysis is based upon a doctrinal and narrative analysis of the key cases, policy and legislative instalments. This analysis includes assessment of how child trespassers have been depicted and their motivations interpreted by English judges; evaluation of the impact of the 1984 Act; the influence of parallel developments in other common law jurisdictions and the interaction of occupiers’ liability law with other ‘safety’ based legislation. The analysis shows how within the broad policy and legal framework set by legislators, the common law and the 1957 and 1984 Occupiers’ Liability Acts, the courts have marked out (and pragmatically adjusted) the limits of the ‘reasonable’ safety provision required of occupiers for lawful visitors and trespassers.