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Posted By Geoff Burt
A true scenario;
Policeman sets up speed trap on private commercial land without contacting the owners whose factory is 50 metres away.
Whilst doing this he stands on a man/woman hole cover and falls 0.6 metres into the hole with a resulting 4 days off work.
He is now suing the factory owners (he refused to give his name immediately after the accident and declined any help)
Can they counter sue for trespass - he was on their land without permission and the manhole cover appears to have been damaged by his little accident?
Geoff
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Posted By Nick House
Interesting one this Geoff. I could comment with my cynical head on, but had better not!!
I know that the Police can 'break the law' by setting up speed traps, etc., on double yellow lines, in no waiting areas and so on without fear of prosecution, and any evidence that they gather is fully admissible. However, not sure whether this extends to using private land without permission.
Was the company aware of his presence before his 'little accident'? If so, was he asked to leave before he set up station, and did he refuse?
If the company were aware of his presence, but chose to ignore him (until he fell down the 'person?' hole, then could it be argued that his presence was accepted, therefore leading to a duty of care being owed?
Food for thought.
Regards
Nick
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Posted By Martin Gray
Geoff
You have put a good question but the whole story is not there.
I work for a police force and have responsibility for the development of risk assessment for operational policing. In my force I would expect the risk assessment to be site specific and this is done during the planning stage of the operation. (Yes we do have dynamic risk assessments for rolling checks - the officer in charge is required to complete the assessment).
In the risk assessment I would expect the officer to have contacted the land owner for permission to use his premises, as the constable does not have automatic right of entry to the purposes descibed.
The question I would put back to you is; If this were not a police officer but a trespasser or burgular would the company counter sue? If they do counter sue they usually take the summons out against the Chief Constable as the officer was on duty at the time.
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Posted By Jim Sweetman
Geoff,
the answer to your question is yes - anyone can sue if they have the means to do so. Whether or not they will be successful is another matter.
Jim
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Posted By Pat Burns
The Occupiers Liability Act 1984 puts a duty on the employer in respect of 'persons not entering by permission or invitation and to other persons outside the original act of 1957.' This determines that the employer owes a common law duty of care to a trespasser and there are several cases on this including British railways Booard -v- Herrington 1972.
The duty is subject to three conditions
1. The occupier must be aware of the danger or have reasonable grounds to believe of its existence.
2.The occupier must also know or have reasonable grounds to believe that the non-visitor is in the vicinity of the danger or may come into its vicinity whether lawfully or not and
3.The risk must be one against which the occupier may reasonably be expected to offer the non-visitor some protection.
If the duty exists then the duty is to protect the non-visitor against injury from the perceived danger.
The duty can be complied with in appropriate circumstances through a warning or deterring entry.
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Posted By Brett Day
Am I right in assuming that the officer is looking to sue ? or is it the Force ? Strictly speaking the officer could be guilty of a criminal offence (Trespass), if so then his evidence could be deemed inadmissable. I'm assuming that it was clear that the land he was on is private property e.g. signs or physical barriers. A word with his duty officer and the local CPS office might help this officer 'see sense'.
Also an officer is required to give his name, rank, PC number and station if requested by a person who has reasonable grounds to do so. Given that he has 'trespassed' and has had an accident on your property you would have reasonable grounds to ask for this information. As he refused, again he could be guilty of another 'technical' offence.
I've had reason to deal with the police as a result of attending an RTA, and the refusal of an officer to give details offence came in very usefull in getting common sense to prevail.
Regards
Brett
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Posted By Geoff Burt
Brett
Trespass is not a criminal offence but I agree with the rest of your sentiments.
It's the policeman who has initiated legal action (well, contacted his solicitor anyway). The area is clearly marked and there is no doubt he knew he was on private land.
I don't understand why he wouldn't give his name and wouldn't give his number either. The owner noted it as the policeman turned away.
His solicitor has started of by saying the Policeman had 'approximately' 4 days off work which sounds odd. You either have 1, 2, 3, 4 or 5 days - not approximately. In any case I assume he does not lose any pay.
Sounds to me like a try on, and importantly there are no witnesses to the actual fall.
Geoff
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Posted By David Sinclair
Geoff,
Like many of the others I find this a very curious case.
If a police officer is injured in the course of his/her employment then the person they sue is their employer.
The employer may then attempt to sue the landowner, but as has already been stated, the duty owed is under the Occupiers Liability Act 1984. Action cannot be taken under section 3 or 4 of HSWA, since civil liability is currently excluded.
Since the police officer was presumably trespassing (which is a common law offence), an action against the property owner seems unlikely to succeed.
Obviously I don't have all the facts, but it seems that the officer's employer may have refused to entertain a claim since he was trespassing and so he is trying it on with you.
I stongly recommend you seek legal advice (but then I would say that wouldn't I) from somebody who is a specialist in this area.
Regards.
David
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Posted By David Sinclair
From a totally different angle, if the speed trap was set up on private land and the action of setting up the trap was illegal, might there be a cause for appeal against conviction for anybody who was caught by that trap.
One for the real criminal lawyers I think. Interesting never the less.
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