The Duty Of Care Owed To A Trespasser

• Published date: 31 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Personal Injury
• Law Firm: BLM
• Author: Ms Sharon MacArthur-Powell

Having dealt with Railway cases for more than 16 years, I have seen more than my fair share of claims involving trespassers. Railway tracks, overhead lines, depots and stations all appear to have attracted trespassers whether unwittingly or deliberately. It is perhaps no coincidence that many of these cases involved intoxicated people, who like moths to a flame are either seemingly attracted to the danger that some of these locations present or wander into the danger without thought.

It was therefore with interest I noted, the judgment on preliminary issues of liability in Ovu v London Underground Ltd [2021 EWHC 2733 (QB) involving whether Mr Ovu had been a trespasser at a station and owed a duty of care.

Facts

The facts in this case are important. Mr Ovu died on 22 January 2017 after a fall on a very cold evening in which he sustained a head injury at Canning Town London Underground Station. Mr Ovu was returning home after a night out and had a significant blood alcohol level in his body. He arrived at the station, passed through the platform barriers and through marked emergency exit gates. The gates sent a silent alarm to the station control centre, staffed by just one person that night. The station was aware that this emergency exit was regularly used by either fare evaders or persons using the area to urinate, vomit or take drugs. Mr Ovu then passed through a more substantial, one way only gate, which led to an open air staircase and gantry structure to an emergency exit gate which also opened outwards only, onto the streets.

Once onto the staircase Mr Ovu could no longer re-enter the station and his only viable route was to use the exit to the street. He descended to the final gate to the street, but he did not exit, deciding to turn round and go back up to staircase.

In the meantime, the sole staff member alerted by the alarm, closed the first of the exit gates therefore preventing anyone re-entering the station. Mr Ovu returned to this closed gate remaining for 11 minutes before deciding to retrace his steps going back up the stairs again along the gantry, but this time descending a further set of stairs, which were not the exit stairs to the street. Tragically, he appears to have fallen on the steps and was not found until the following morning by a member of staff. He suffered fatal head injuries.

Inquest

An inquest into Mr Ovu's death concluded he died due to his intoxication, fall and head injury. However, the coroner made recommendations to...