The Court of Appeal has upheld a decision striking out claims under the Occupiers’ Liability Act 1957 and the Occupiers Liability Act 1984 in Brown and others v South West Lakes Trust and others [2022] EWCA Civ 18.
The case concerned the death of a driver who drowned in Stithians Reservoir in May 2017 when her vehicle left the C164 near Redruth, Cornwall, and went through a wire fence on the verge and down a stone-faced bank into the reservoir.
The deceased’s family brought claims for negligence and breach of statutory duty against the owner of the reservoir (the second defendant) and a charity licensed to use it (the first defendant), as well as the council (the third defendant), which was the highway authority for the C164.
The claims against the first and second defendants included failure to provide a safety barrier to protect against the risk of drivers losing control on the bend of the carriageway and crashing into the reservoir and referred to accidents on the bend in October and November 2014. Similar claims were brought against the highway authority in relation to the construction and design of the road forming the highway, including the radius of the bend where the accident occurred and failing to heed or act upon previous accidents in the vicinity.
The defendants applied successfully to strike out the claims. The judge decided that, as the deceased was a trespasser, the claims against the first and second defendants could only be under section 1 of the 1984 Act, which provides that where an occupier is aware or has reasonable grounds to believe that there is a danger owing to the state of premises or things done or not done on them, he owes a duty to trespassers to take reasonable care to see that they do not suffer injury on the premises from the danger. However, there was no duty on the first and second defendants to prevent cars from leaving the road and coming onto their premises. The council was not an occupier of the highway. The judge found no failure to maintain the highway, nor any evidence that the sharpness of the bend was either dangerous in itself or that it caused the accident.
The Court of Appeal upheld the decision in relation to the first and second defendants. There was no sustainable basis for showing a duty under the 1984 Act owed to the deceased by the occupiers of the reservoir, and nothing could emerge from the trial process which might affect that conclusion. There was nothing in the state of the reservoir which posed a danger to the deceased and, since there was nothing to suggest that prudent persons would be deterred from using the highway because of the presence of the reservoir, it was not a public nuisance. However, the court did reinstate the claim against the council for negligently designing and constructing the highway with too sharp a bend. While the claim was not as focused as it might have been, it did disclose a reasonable cause of action with a real prospect of success.
Louise Clark is a property law consultant and mediator
