Occupiers’ liability and trespassers

In this matter, Kennedys acted on behalf of London Underground Limited (LUL).

Background

This claim arose from a tragic fatal accident at a station owned and operated by LUL on 22 January 2017. Mr Ovu (O) was travelling home in an intoxicated condition and alighted at LUL’s station during his journey.

While at the station, O left the platform, passed through two signposted barriers (a gate and a door) and entered an emergency exit route without LUL’s express or implied permission.

Shortly after O entered the restricted area, one of LUL’s employees closed the door, preventing O’s return to the platform.

Although O was able to leave via the door onto the public highway, he instead remained in the restricted area and, after a further 45 minutes, he fell down a staircase and sustained a fatal head injury. The staircase in question was a standard staircase that posed no danger to users by its condition.

Liability was denied by LUL on the basis that O had no permission to be in the accident location at the relevant time, thereby denying him the status of a lawful visitor and as such, LUL argued that no common law duty was owed to O at the time of the accident.

A preliminary trial dealing with issues of trespass and duty of care was heard in the High Court on 8 June 2021.

Judgment

The court found that:

1 O was a trespasser at the time of his death; and

2 A relevant duty was not owed to O in respect of the risk of falling down the stairs and sustaining injury.

Trespass

The court confirmed the definition of trespass as: (1) the lack of permission or invitation and (2) being in a location where one has no permission to be. However, this is tempered by the individual’s mental state, i.e. whether they reasonably ought to have known they were entering a restricted area and whether they entered the restricted area deliberately or inadvertently.

Duty of care

There is a distinction between ‘occupancy duties’, which are covered in the Occupiers’ Liability Acts 1957 and 1984, and ‘activity duties’, which fall outside the Acts.

That distinction is based on whether the risk arises due to the state of the land itself (occupancy duties) or from an act or activity undertaken (activity duties). It is possible in principle for occupancy and activity duties to run parallel to one another, and for one set of duties to be at a higher level than the other.

However, when considering whether any duty of care is owed, one must consider “what risk is it that is being protected against?” Quoting Ratcliff v GR McConnell & E W Jones [1997] (Ratcliff), the court noted, “If one comes under a duty at common law then it is a duty to take reasonable care in all the circumstances but one must know what risk the duty, if any, seeks to mitigate against … To start at the other end of the telescope so to speak, and to ask in the abstract what the duty may be is to give rise to a risk of a counsel of perfection especially with the benefit of hindsight in the ‘leisure of the court room’.”

The court further echoed Ratcliff by stating that, “a judge must ask what a defendant would actually be expected to do if it did owe a duty”.

In this case, the risk to be guarded against was that of O falling down a staircase which itself had no particular defects nor unusual dangers of condition. The court found that this was an ordinary risk of using any staircase.

Accordingly, as the staircase in question was not dangerous, the duty of care under the 1984 Act was not triggered and, separately, no activity duties were occasioned in this case.

Comment

There are a number of important takeaways for defendants, namely:

1 The definition of a trespasser in British Railways Board v Herrington [1972] is still good law, though this is to be tempered by consideration of the individual’s mental state, i.e. should the individual reasonably ought to have known that they were entering a restricted area?

2 Appropriate signposting, warnings and/or barriers will therefore continue to be important evidence to demonstrate that a certain area is restricted.

3 An intoxicated individual cannot use their self-intoxication as a grounds for not knowing they are entering a restricted area.

4 An individual who enters a restricted area as a trespasser but changes their mind and no longer intends to be a trespasser does not escape their trespasser status while still in the restricted area.

5 It is important to consider whether there are any common law ‘activity duties’ that might run in parallel with the ‘occupancy duties’ set out in the 1957 and 1984 Acts.

6 When considering whether a duty of care is owed, the correct approach is to first consider what risk it is that is intended to be guarded against and what the defendant reasonably ought to have been expected to do to mitigate that risk.