So what is all the fuss about the current craze of Pokémon hunting, and why should landowners and occupiers, in particular, care about the new game?
For those not in the know, Pokémon Go, which was released in the United Kingdom on 14 July 2016, is a free-to-download augmented reality game which allows the players to move around the real world and capture different Pokémon (small animated animals) using the camera applications on their smartphones.
The game encourages players to physically explore their local environs in order to locate and catch Pokémon, with some places being particular “hot spots” for Pokémon activity. For example, some premises may have rare Pokémon spawning in their grounds, whilst others have been designated by the game as being Pokémon Gyms (places where battles can be fought) or Pokéstops (where helpful items can be collected). These focal points for Pokémon activity, and the desire to “catch ‘em all”, have led, in some instances, to players descending on properties en masse, even if that means trespassing onto private land.
In the Netherlands, ProRail, the Dutch railways controller, has reported players caught walking on railway tracks. In Gloucestershire, at Manor by the Lake, the owners have been forced to post signs telling Pokémon Go players to ask permission before they enter the grounds to play.
Players often pay little attention to their surroundings, with some media outlets reporting individuals who have walked into the sea and off cliffs whilst playing, and injuries have occurred.
Occupiers’ duty to trespassers
It is important for landowners and occupiers of land to be aware that, even if Pokémon Go players stray onto private land without permission, if they then injure themselves, the landowner/occupier may be legally liable for that injury.
The Occupiers' Liability Act 1984 imposes a restricted duty of care in respect of personal injuries to trespassers. In order to establish that duty, three criteria must be met:
- The occupier must be aware of the danger or have reasonable grounds to believe that it exists.
- The occupier must know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (whether lawfully or not).
- The risk in question must be one against which, in all the circumstances, the occupier might reasonably be expected to offer some protection.
Where a duty is proven, it is important to note that it extends to taking such care as is reasonable in all the circumstances in order to see that the trespasser does not suffer injury on the premises by reason of the danger in question. Accordingly, in some circumstances erecting warning signs may be sufficient to give the trespasser warning of the danger concerned or to discourage the would-be trespasser from incurring the risk. To that end, no duty will be owed to a trespasser who is deemed to have willingly accepted the risk (for example, by reading a warning sign but proceeding anyway).
Given the popularity of Pokémon Go, it is likely that further incidences will be reported where players have been tempted to stray onto private land, or have done so unwittingly. Occupiers of such property, particularly those who have reason to believe that their land is attracting Pokémon players, should therefore consider putting appropriate warning signage up in order to discharge their statutory duty.