Occupiers’ liability – Duty of care – Trespasser – Appellants claiming damages for negligence and breach of statutory duty following death of person in car accident – High Court striking out claims – Appellants appealing – Whether claims being reasonable causes of action with real prospect of success – Appeal allowed in part
On 16 May 2017, a person died when their car left the C164 highway near Redruth, Cornwall, went through a wire fence on the verge and down a stone-faced bank into the reservoir where the car was submerged.
The deceased’s family (the appellants) brought a claim for damages for negligence and breach of statutory duty, pursuant to the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, against the second respondent owner of the reservoir, the first respondent charity which had a licence to use the reservoir and the third respondent local authority which was the highway authority for the C164 highway.
It was pleaded against the first and second respondents, amongst other things, that there was no safety barrier to protect against the risk of drivers losing control on the bend of the carriageway which crossed the reservoir and crashing into the reservoir. So far as the third respondent was concerned, it was pleaded that it was responsible for the negligent construction and/or design of the physical road and its surrounds which formed the material section of the highway.
The respondents applied to strike out the particulars of claim and for reverse summary judgment. The claims succeeded on the basis that the particulars of claim had disclosed no reasonable grounds for bringing the claim and had no reasonable prospect of success: [2021] EWHC 469 (QB)
The appellants appealed, the issues were whether the claim should be reinstated against the second respondent under section 1(4) of the Occupiers’ Liability Act 1984 on the basis of the state of the reservoir; and whether the claim against the third respondent had been properly struck out.
Held: The appeal was allowed in part.
(1) On any summary determination of a claim, either by striking it out or by granting reverse summary judgment, a court should always be conscious of what might emerge in the trial process. However, the claims against the first and second respondents for breach of duties owed under the 1984 Act were bound to fail, and were rightly struck out by the judge. There was nothing that could emerge in the trial process which might affect that conclusion because there was no sustainable basis for showing a duty under the 1984 Act owed to the deceased by the occupiers of the reservoir.
Duties on occupiers or landowners were originally restricted to a duty not to injure trespassers deliberately. Those duties expanded to include duties owed to children who were trespassers. The 1984 Act built upon the development of the common law duties owed by occupiers of land to trespassers.
(2) For the purposes of the 1984 Act, there was a distinction between premises which were dangerous because there was some defect in them which was not apparent to the trespasser, and the carrying out of a dangerous activity on the premises by the trespasser. In section 1(1)(a) of the 1984 Act, there was at the end of the section express reference “to things done or omitted to be done on” the premises. The “state of the premises”, within the meaning of section 1 of the 1984 Act, might include references to natural features: Tomlinson v Congleton [2003] UKHL 47; [2003] PLSCS 203; [2004] 1 AC applied.
However, that did not mean the claim in the present case might succeed because it was necessary to show that there was a “risk of … suffering injury on the premises by reason of any danger due to the state of the premises”. In this case the danger arose because the deceased’s car came off the highway, travelled across the verge, went through the fence and down the bank, and into the reservoir. That danger was not due to the “state” of the reservoir.
Accordingly, the appeal against the order of the judge striking out the claims against the occupiers of the reservoir and granting the occupiers reverse summary judgment would be dismissed.
(3) The judge’s decision to strike out the claim against the third respondent for the negligent design and construction of the highway appeared to have been on the basis that it had not been pleaded nor evidenced that the sharpness of the bend was dangerous in itself, or that it caused the accident. However, the particulars of claim pleaded that the location of the accident was on the section of the highway with the bend and had been caused by, among other causes of action, the negligence of the third respondent.
The pleading did not contain some of the detail that might be expected in a claim for misfeasance on the part of a highway authority, for example by specifying the angle of the bend, and by specifying the angle recommended by prevailing standards. That, however, was different from saying that the claim did not disclose a reasonable cause of action and that the claim did not have a real prospect of success. If the third respondent had constructed a highway with a bend which was more acute than that recommended by prevailing standards for reasonable, prudent and competent builders of highways, and the acuteness of the bend was a cause of the deceased’s loss of control and accident, then the claim made by the appellants might have a real prospect of success, even if there would be an inevitable and substantial reduction for contributory negligence on the part of the deceased.
(4) The judge was wrong to strike out the particulars of claim against the third respondent and to give reverse summary judgment in its favour. Accordingly, the appeal against the third respondent would be allowed to the extent of permitting the claim for negligently designing and constructing the highway with too sharp a bend to progress. The claims against the third respondent, as an occupier of the highway, for failing to maintain the highway and for failing to exercise powers to erect a crash barrier remained struck out and dismissed.
Robert Weir QC and James Marwick (instructed by Chris Kallis Solicitors, of Plymouth) appeared for the appellants; Matthew White (instructed by DAC Beachcroft LLP) appeared for the first respondent; Julian Horne (instructed by BLM Solicitors, of Liverpool) appeared for the second respondent; Tom Panton (instructed by Weightmans) appeared for the third respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Brown and others v South West Lakes Trust and others
