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The duty of care owed to a trespasser

  • Legal Development 28 January 2022 28 January 2022
  • UK & Europe

  • Insurance & Reinsurance

The judgement on preliminary issues of liability in Ovu v London Underground Ltd [2001] EWHC 2733 (QB) involving whether Mr Ovu had been a trespasser at a station and owed a duty of care.

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.


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.


An inquest into Mr Ovu’s death concluded he died due to his intoxication, fall and head injury.  However, the coroner made recommendations to London Underground for improvements. The procedure when an alarm alerts staff to an entry through the emergency exit was to investigate where a member of the public had gone, but it was not followed that night as there was just one member of staff and the station would have been left unoccupied.

Civil claim

The representatives of Mr Ovu’s estate brought a civil claim against London Underground pleading that Mr Ovu was a visitor pursuant to the Occupiers Liability Act 1957 who was owed a duty of care, which had been breached causing his death.

Liability trial

The preliminary trial on the issues of liability considered three main elements:

  1. Was Mr Ovu a trespasser at the time of his death?
  2. Did the defendant owe Mr Ovu a duty of care?
  3. What is the extent of that duty of care?

Trespasser or visitor?

It was argued by the claimants that whilst Mr Ovu had passed through emergency gates without consent, he had tried to re-join the platform, but was effectively trapped in the restricted area because he was unable to get through the one way emergency gates closed by the member of staff. They argued it was clearly his intention to resume his journey and hence be an invited visitor of the defendant.

They relied on the case of Spearman v Royal United Bath Hospitals NHS Trust [2017] in which it had been held that a patient of the defendant hospital having left the treatment location and used an internal fire escape to get onto the flat roof, where he thereafter jumped or fell to the courtyard below, was found to be a visitor as opposed to a trespasser even though he was in the place he should not have had access to. Mr Justice Martyn Spencer stated in his judgment “whether a person is or is not a trespasser is not to be determined by whether the place where they are is or is not an authorised place. A person’s state of mind and intention is an important additional factor too." As the patient had mental health concerns in this case, it was foreseeable that he may enter areas not normally entered by patients and had done so as a genuine mistake. Whilst it was accepted Mr Ovu was drunk it was alleged he clearly tried to return to the platform from the restricted area.

In Ovu, the defendant argued that Mr Ovu was a trespasser and his state of mind could not change that.  Spearman could be distinguished as he had been a vulnerable patient which was not the case here.

Master McCloud concluded the claimant was a trespasser relying on the House of Lords decision of British Railways Board v Herrington [1972]. Mr Ovu entered a restricted area as a trespasser well aware of the fact he was off limits due to barriers and signage, even if he had later intended to cease to be a trespasser. He was a trespasser at the time of his death and Spearmen could be distinguished.

Duty of care owed to a trespasser

As a trespasser, the Occupiers Liability Act (OLA) 1984 applied. So was a duty of care owed by London Underground to Mr Ovu at the time of his death? Duties to non-visitors do apply where there is any “danger due to the state of the premises or to things done or omitted to be done on them.”

The claimants argued that the duties under the OLA 1984 act related to occupants and occupancy duties namely those arising from the “state” of the land, and that any duties arising from “activity” on the land fell to be considered under the general law of negligence. It was argued that London Underground knew passengers had entered the fire escape routes previously and had a procedure of searching the exit route to deal with that, which they failed to follow and it was this failure which left Mr Ovu on the emergency escape structure and eventually the stairs where he had fallen to his death. 

London Underground argued that OLA 1984 made it clear that this legislation was in place of the rules of common law of negligence. There was no reasonable ground to believe that the staircase posed a danger or was in a state of repair of disrepair. Therefore, given there was no danger to the state of the premises no duty was owed to Mr Ovu. It was further argued that even if the claimants could prove that the defendant owed a duty, it was not a risk which the defendant should be expected to offer additional protection, as it was a normal staircase and there could be no duty to warn people about the dangers of falling down stairs. To do so would be to take special steps to ensure the safety of intoxicated people on staircases on the transport network, which would impose an enormous burden. Furthermore, no duty of care is owed to any person in respect of risks willingly accepted and in this instance Mr Ovu had willingly drunk to excess and chosen to use the stairs.

Master McCloud confirmed that under the OLA 1984 there is a duty to non-visitors where there is a danger due to the state of the premises for things done or omitted to be done on them, but having considered Clerk and Lindsell she concluded that the Act did not restrict the possibility of liability of breaches of duties in relation to an activity. In principle therefore, there is nothing to prevent, in an appropriate case, a duty of care at common law, in parallel with the duties to trespassers under the 1984 Act.

However, in this case Mr Ovu had slipped and fallen on a standard staircase with no defect, it was not unlike any other staircase on the underground whether in public or non-public areas. Therefore a relevant duty was not owed to him in respect of the risk in question; namely falling down the stairs and sustaining injury. The closure of the gate by staff did not make the stairs more dangerous, there was no relationship with the gate and the risk of a fall on the staircase.

In conclusion London Underground successfully defended this claim.

This was a tragic accident, but it appears to me this decision must be correct and London Underground were right to defend it. Mr Ovu entered an area to which he had not been invited, so on the facts he was clearly a trespasser. The accident was caused by a fall down stairs which were not defective, so no duty of care was owed to him as there was no danger due to the “state of the premises.”  It was an entirely ordinary staircase and the risk of falling was obvious; it would have had far reaching implications for the rail industry and indeed occupiers had it been necessary to protect transport users from a normal everyday risk. It is therefore pleasing that a message has been sent that a duty of care is not owed in these circumstances.

*This content was written by BLM prior to its merger with Clyde & Co*


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