Do I need to stop you driving onto my land?
Occupiers’ liability for trespassers clarified.
Yesterday the Court of Appeal handed down a judgment in the occupiers’ liability case of Brown & Others v South West Lakes & Others  EWCA Civ 18 confirming the meaning of s.1(1) of the Occupiers’ Liability Act 1984 (“the Act”) and refusing to accept that practitioners and judges have been misreading the judgment of Lord Hoffmann in Tomlinson v Congleton BC  1 AC 46 for the last 18 years.
This case arose out of a tragic road traffic accident on 16 May 2017, when Mrs Brown lost control of her car on a rural road in Cornwall, causing her to leave the carriageway and crash into a reservoir. Sadly, Mrs Brown drowned. The claim was brought by her widower on his own behalf and that of the couple’s two young sons.
Proceedings were brought against the occupiers of the reservoir and the highways authority. It was agreed that Mrs Brown was a trespasser (non-visitor) and so it was the 1984 Act that applied (rather than the Occupiers’ Liability Act 1957, which deals with visitors). The first part of the test was that the claimants had to show that there was a risk of suffering an injury on the premises by reason of any danger due to the state of the premises (s.1(1)(a) of the Act). All three claims were struck out by HHJ Allan Gore following an application hearing in January 2021.
The occupiers’ liability claim against the highways authority was bound to fail because a highway authority is not an occupier of the road (see Gorringe v Calderdale MBC  1 WLR 1057). This was accepted and not appealed.
The appellants’ submissions
The claimants appealed the decision against the occupiers of the reservoir, submitting that the “danger” for the purposes of s.1(1)(a) of the Act was due to the water, and in particular the depth of the water, in the reservoir. The danger was of drowning and the danger was to anyone who might drive a car into the reservoir having come off the highway. The judge should have found that it was arguable that the occupiers were aware of the danger or had reasonable grounds to believe that it existed (see s.1(3)(a) of the Act). As a result, the occupiers owed a duty to road users and should have provided a secure barrier or warning to prevent a driver inadvertently driving into the reservoir.
The occupiers submitted that the danger arose due to Mrs Brown’s failure to drive with reasonable care and skill and that there was no risk of anyone suffering injury in the reservoir by “by reason of any danger due to the state of the premises” (s.1(1)(a) of the Act). The claimants were wrong to attempt to separate the need to show that the “danger” was “due to the state of the premises” as water of any depth has the potential to be dangerous. They relied upon the leading case of Tomlinson, where a person dived into a lake and hit his head on the bottom after being warned not to dive in.
Whilst this may appear to be lawyers ‘splitting hairs’, the distinction is important as the phrase must be read as one. Tomlinson confirmed that the risk of injury, for which there is a duty on occupiers to prevent, must be due to the “state of the premises”, otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity.
In this case, the danger was due to Mrs Brown driving off the highway and into the reservoir. The “state” of the reservoir was not a danger to her as there was nothing wrong with it. It was just a reservoir. The activity of driving off the road was dangerous and there was no duty on occupiers to prevent it. The Court of Appeal reaffirmed this.
One of the arguments at first instance was that if the claimants were correct in their analysis, it would require anyone who owned a wall, tree, etc. next to a highway to have to take steps to prevent road users from being injured by it if they lost control and drove into it. Lord Justice Dingemans, giving the leading judgment, confirmed that “there is nothing in the duties of those occupying properties bordering the highway which extends to preventing drivers on the highway from driving off the highway onto their land”.
The issue for practitioners and insurers to consider carefully in respect of trespassers continues to be if the “danger” was due to the “activity” (such as climbing, diving or driving) or the “state of the premises” (such as a hidden defect). Each case is likely to turn on its own facts and so we would encourage you to read the cases referred to in full. See also Keown v Coventry Healthcare  EWCA Civ 39 (affirmed in the instant judgment) where there was no liability in respect of a child who climbed up a fire escape and fell from it as there was nothing dangerous about the fire escape.
Weightmans represented the third respondent in the appeal.
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