In Ovu v London Underground Ltd [2021] EWHC 2733 (QB), the estate of Bernard Ovu brought a claim against London Underground for negligence and breach of duty under the Occupiers’ Liability Acts 1957 and 1984 in respect of his death following a fall from an emergency exit staircase at Canning Town station. The questions for the court were whether at the time of his death Mr Ovu was a trespasser, whether the defendant owed him a duty of care and, if so, the extent of that duty.
At the time of the incident, Mr Ovu was intoxicated and in a non-public area of the station, having passed through clearly marked one-way emergency exit barriers and up onto an external raised walkway. The defendant was well aware that passengers entered the fire escape route to urinate, vomit or fare-dodge.
Use of the first barrier triggered an alarm in the station control room which – under the defendant’s internal procedure – required a check of the exit structure beyond the barrier before the door was closed and secured. However, on the night in question there was only one person staffing the station, and although the door was closed and secured, no check beyond the barrier was carried out.
The claimant argued that although Mr Ovu passed through the emergency gates without consent, CCTV showed that he had been trying to return to the platform to resume his journey home and therefore he had ceased to be a trespasser. Trespass requires lack of permission or invitation, whether express or implied, and being in a location where there is no permission to be. Intention is generally irrelevant, except in the case of simple mistake. Mr Ovu had entered an off-limits area and was well aware that he had done so. Merely changing his mind did not change his status: he was a trespasser.
The claimant also argued that the defendant owed Mr Ovu a duty of care, and it was its failure to follow its own procedures which led to his death. Under the 1957 Act, a duty is owed to “visitors in respect of dangers due to the state of the premises or to things done or omitted to be done”.
There is a similar obligation to non-visitors under the 1984 Act – parallel to the common law obligations in negligence – where an occupier is aware of a danger, knows that a non-visitor is in the vicinity of the danger and the risk is one against which he may reasonably be expected to offer some protection.
The court found that there was nothing unusual or defective about the staircase, and the risk encountered by Mr Ovu was the ordinary risk of using a staircase which would be obvious to any adult, especially after a few drinks. There were no measures the defendant could sensibly be expected to have taken to protect transport users from such a risk. The closure of the gate and failure to follow internal procedures did not give rise to any danger. No duty of care was owed to Mr Ovu either at common law or under statute.
Louise Clark is a property law consultant and mediator
