Occupier’s liability – Trespasser – Duty of care – Deceased falling down stairs on defendant’s property – Claimant suing defendant alleging breach of duty of care – Whether deceased was trespasser at time of death – Whether defendant owing duty of care to deceased at time of death – Claim dismissed
The claimant, as administratrix of her relative’s estate, sued the defendant company because her relative had died after falling down the stairs on a fire escape in a non-public area near to the Docklands Light Railway platform of Canning Town London Underground Station. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good condition. The claim alleged a breach of the defendant’s statutory duty of care towards visitors and negligence at common law.
The court had to decide whether the deceased was a trespasser and whether the defendant owed a duty to the deceased to take steps to ensure his safety on the stairs in the circumstances.
The claimant’s basic argument was that the defendant owed a duty of care to the deceased as its passenger, and that applied at common law, so that this was not just a statutory Occupier’s Liability Act case. The duty alleged arose not from so-called “occupancy” duties under the Acts but because, at all material times, the deceased was a member of the public using the defendant’s transport services, which did not come to an end merely because he was in a restricted area of the station at the time of his death.
The issues to be determined were: (i) whether, if it was not admitted by the claimant, the deceased was a trespasser at the time of his death; and (ii) whether a duty of care was owed by the defendant to the deceased at the time of his death and the extent of that duty of care.
Held: The claim was dismissed.
(1) The Occupiers Liability Acts of 1957 and 1984 did not use the expression “trespasser” or “trespass” but spoke in terms of visitors or persons who were not visitors in law. The 1984 Act expressly adopted the concept of visitor from section 1(2) of the 1957 Act which indicated that “for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same […] as the persons who would at common law be treated as an occupier and as his invitees or licensees”.
The deceased was a trespasser at the time of his death. He was not a lawful visitor because he had exceeded the well signposted limits of his permission and there was nothing on the agreed facts to suggest that the signage or barriers were such as to mean that he could not be aware of the limits of his licence: Braithwaite v South Durham Steel Co Ltd [1958] 1 WLR 986, Herrington v British Railways Board [1972] AC 877; (1972) 223 EG 939 and Spearman (A Protected Party) v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB) considered.
(2) The conclusion that the deceased was a trespasser implied that, at the very least, the duty to non-visitors under the Occupier’s Liability Act 1984 applied: where there was any danger due to the state of the premises or to things done or omitted to be done, there was a duty to take such care as was reasonable, in all the circumstances, to see that the trespasser did not suffer injury on the premises by reason of the danger concerned, if the occupier was aware of the danger or had reasonable grounds to believe that it existed and knew, or had reasonable grounds to believe, that the other was in the vicinity of the danger concerned; the risk was one against which, in all the circumstances, he might reasonably be expected to offer the other some protection. The reference to “danger due to the state of the premises or to things done or omitted to be done on them” was intended to echo the prior common law on “occupancy duties”, ie, negligence by activity, omission or state of premises, which gave rise to a danger due to the state of the land itself: section 1(3), (4).
(3) It was apparent from section 1(1) of the 1984 Act that the rules enacted by that section had effect, in place of the rules of the common law, to determine whether any duty was owed by a person as occupier of premises other than his visitors in respect of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them and, if so, what that duty was.
When determining whether a particular duty of care was owed, one had to ask what risk was being protected against specifically. If there was a duty at common law, it was a duty to take reasonable care in all the circumstances but one had to know what risk the duty, if any, sought to mitigate against. It was important to see whether the claimant was aware of the risk of injury because it was obvious and ask what a defendant would actually be expected to do if it did owe a duty: Ratcliff v GR McConnell & E W Jones [1997] EWCA Civ 2679 considered.
(4) In the present case, the deceased apparently slipped and fell on a standard staircase with no particular defects or unusual dangers. There were no measures that the defendant could sensibly be expected to have taken to prevent a fall on an ordinary staircase in good condition, given the obvious risk of a fall on any stairs and the enormous implications if it were necessary to intervene to protect transport users from normal everyday risks. A relevant duty was not owed to the deceased.
In principle, there was nothing to prevent, in an appropriate case, some duty of care at common law in parallel with the duties to trespassers under the 1984 Act but there was no basis for a separate common law duty in this instance. On the facts of this case, and bearing in mind the risk to be protected against, the only reasonable framing of a duty of care falling on the defendant could be that provided for under section 1(1) of the 1984 Act, which would arise if the triggering criteria of section 1(3) were met.
Christopher Walker (instructed by Bindmans LLP) appeared for the claimant; Peter Freeman (instructed by Kennedys) appeared for the defendant.
Eileen O’Grady, barrister
