Protesters occupying trees to protest against building of road – Claimant suffering severe injury after falling while attempting to prevent branch being cut – Claimant alleging negligence and breach of statutory duty – Claim dismissed
The claimant was one of a number of people who protested against the construction of the A4/A46 Batheaston/Swainswick bypass in Avon. Together with other protesters, he constructed a tree house and occupied one of the many trees which were to be demolished during the construction. The Highways Agency engaged consulting engineers and Amey Constructed Ltd, the second defendant, as a main contractor for the construction of the bypass.
In 1994 the second defendant commenced work, and in order to prevent more protesters climbing the trees, it acquired the use of a hydraulic hoist with a basket on an hydraulic arm to remove the lower branches. It also engaged the third defendant, a tree surgeon, to cut branches using a chainsaw from the platform of the hydraulic arm.
High Court orders for possession were obtained and the sheriff was instructed to enforce the orders. However, the protesters, including the claimant, remained as trespassers. Gradually, much of the site was cleared until the part occupied by the claimant represented the last stand for protesters occupying the trees.
In 1994 the claimant abseiled onto a branch in order to prevent it being cut. However, his rope was not adequately secured and when he fell, he dropped 50 ft to the ground and sustained severe injuries. The claimant commenced proceedings alleging negligence and breach of statutory duty pursuant to section 1 of the Occupiers Liability Act 1984.
Held:The claim was dismissed.
1.The second defendant was an occupier of the site for the purposes of the 1984 Act. However, given that no branches supporting the one from which the claimant had been cut and the provision of a soft landing had been impractical, no question of occupiers’ liability arose.
2.The second and third defendants had owed a duty of care to the claimant. That duty had been not to enhance the danger that the claimant had created for himself, and it could be concluded that they had not been in breach of that duty. Although the second defendant, and probably the third defendant, should have, but failed to produce a written risk assessment, the failure had not contributed to the claimant’s fall. The claimant had voluntarily exposed himself to the whole risk as a matter of deliberate policy and the defendants could not be held liable for it. Moreover, the conduct of the defendants could not be regarded as disproportionate.
Andrew Collender QC and Bradley Martin (instructed by Stone King, of Bath) appeared for the claimant; Mark Evans QC (instructed by Keogh Ritson, of Southampton) appeared for the second defendant; Benjamin Browne QC and Stephen Archer (instructed by Williams Davies Meltzer) appeared for the third defendant.
Thomas Elliott, barrister
