Posted By Liam Mc Conalogue Hi All, A few years back we have had a tresspasser to one of our sites who tried to break the lock on the gate with no success. He then decides to use a ladder to gain access and succeeds, however he had a minor accident during his adventure- he cut his shin on a bit of reinforcing steel. He now has lodged a claim (just under the 3 years). Where do we stand? As we had a high barrier that he couldn't get through, and lots of signage (and I mean lots!). Now I know the lad cut his wee leg, albeit a surface wound, nonetheless, but still an injury. Other than putting markmen and a few hungry Alsations (It's that Friday feelin creeping in) on the sites what can we do to prevent this? Any suggestions on how to address the claim? Thanks In Advance. Liam

Posted By J Knight I suspect that following Tomlinson vs Congleton MBC he should get fairly short shrift. Although the actual case was about ponds, the principle was about trespass, and the lords ruled that the intention of the OLA was that trespassers would be owed a lesser duty of care, especially where any injury arose as a result of their own actions. He was not invited to climb a ladder; the consequences of his actions shiould be for him to bear. Still, you never know what will actually happen in court, John

Posted By Gareth Bryan To sum up, he hasn't got a leg to stand on !!!!!

Posted By Geoff Burt What if the site was just across the road from B&Q and he got the ladder from them David? Would they be negligent? That was a joke (or was it) but I hope there are no old inspection reports lying around to incriminate them! Geoff

Posted By Jack No chance from what you have said. Did your company take reasonable care? (What did he cut himself on; something placed there to cut people breaking in on just a normal part of the barrier? In what way could he claim you were negligent?) What were his injuries? If it was just a minor scratch it won't be a very big claim. Has this come from a solicitor or the claimant direct? Section 3 of 'the Act' is irrelevant.

Posted By Robert Paterson Intresting that Jack should completely dismiss sect 3 of "The Act". If I was walking in off the street through the front gate unannounced and injured myself, what would be the case then?Would I be able to claim the company because of their lack of 'duty of care' that should have been afforded to me under sect 3 of The Act The only difference I can see is the route of entry. I think the Section 3 part of the HASAW Act 1974 might apply. Regards Robert Paterson

Posted By J Knight David, I don't agree that the question of ownership of the ladder is relevant. Following Tomlinson the question seems to be whether his act would be judged as reckless, and whether he was invited onto the site. The employer would be required to make teh site reasonably secure, and sure, inspection pits need to be guarded when not in use. S3 would apply where people are invited; in other words, anybody walking onto a site during the working day could be protected by s3 as they might well have good reason to walk onto the site, trespassers entering the site after working hours would not be so invited. However, this is a civil case so breach of s3 would just be evidence of failure to discharge duty of care. Remember that in Tomlinson the injured party was taking part in a common activity; although the lake was not intended as a bathing lake it was widely used as one, in the opinion of the judge that simply didn't matter, John

Posted By Jack Robert, this is a civil claim. See Section 47 of HASAWA. (Unless you think the HSE might be visiting 3 years after a trespasser received a minor scratch!)