Court Of Appeal Clarifies Occupiers' Liability In Recent Judgment

• Published date: 07 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: BLM
• Author: Ms Sharon MacArthur-Powell

The Court of Appeal handed down judgment on 17 January 2022 in a case arising from a fatal car accident in 2017.

The facts of the case

Mrs Brown was driving her car on the road running along the south of Stithians Reservoir in Cornwall. Shortly after rounding a sweeping left hand bend, she lost control of the car which left the road and crashed through a chain link fence into the water of the reservoir.

A claim was commenced against the two occupiers of the reservoir and Cornwall Council, the highway authority.

The first instance decision

BLM represented one of the occupiers of the reservoir. Both occupiers claimed Mrs Brown was a trespasser, to whom the Occupiers Liability Act 1984 applied. There was no danger due to the state of the premises or to things done or omitted to be done on them as required by S 1(1) of the 1984 Act and Mrs Brown was not therefore owed a duty of care. All three Defendants successfully applied to strike out the claim.

The Claimant appealed, arguing that the danger was the existence of the water, which posed a real risk of injury to anyone who came upon it. Of note, the Claimant sought to distinguish Tomlinson v Congleton Borough Council [2003] by arguing that Tomlinson made a free choice to dive into the lake, unlike Mrs Brown who was an inadvertent trespasser, having not intended to leave the road and enter the reservoir. The Claimant argued these were triable issues and the claims should not have been struck out.

Court of Appeal decision

The Court of Appeal dismissed the appeal against the two occupiers and upheld the striking out of the claim. They agreed with the occupiers that the danger arose as the car had...