D. What duty is owed?
Lawful visitors
An occupier owes lawful visitors a “common duty of care”. This means taking such care as is reasonable in all the circumstances to see that the visitor is reasonably safe while using the premises for the purpose for which he is invited or permitted to be there.
The duty is concerned with making the person safe, rather than ensuring the premises are safe. The duty applies only while the visitor is using the premises for the specific purpose for which he was admitted.
Trespassers
Trespassers are people who enter or remain on premises without permission or other legal authority. In occupiers’ liability terms, a person may also become a trespasser by going beyond the area he was allowed to enter, staying after permission has ended, or using the premises for a purpose outside the permission given.
A trespasser is not limited to a stranger breaking in. It can include a person who originally entered lawfully but later becomes unauthorised, for example by entering a staff-only area, remaining after being told to leave, or staying after a licence has been revoked.
Trespassers are treated differently from lawful visitors. In Hong Kong, the duty to trespassers remains based on common law principles rather than a separate statutory regime, and the duty is generally lower than the duty owed to lawful visitors.
The duty owed to a trespasser is to act with common humanity towards him. It is not a duty to ensure that the premises are safe for the trespasser while he is trespassing. This does not mean occupiers can ignore all risks to trespassers in every case. However, the legal rules are different, and whether any duty is owed will depend heavily on the circumstances, including the nature of the danger, whether the occupier knew or should have known about it, and whether trespassers were likely to come near it.
In broad terms, if the occupier has actual knowledge that the trespasser is there, or that trespassers are likely to come there; and of a danger on the premises or an activity there likely to cause personal injury to a trespasser who is unaware of it, the occupier must take such steps as common sense or common humanity requires, within reasonable and practical limits, to warn, exclude, or otherwise reduce the danger.
This is a limited duty. The occupier does not have to make the premises safe for trespassers to trespass on, and there is no general duty to inspect the premises to discover possible dangers or possible trespassers.
