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Court of Appeal clarifies occupiers' liability in recent judgement

  • Legal Development 04 February 2022 04 February 2022
  • UK & Europe

  • Casualty claims

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 left the highway, not due to the “state” of the reservoir. Plus, even if the danger had arisen from the state of the premises, it was not one against which the occupiers could reasonably have been expected to protect Mrs Brown. There was, as Dingemans LJ said, “nothing in the duties of those occupying properties bordering the highway which extends to preventing drivers on the highway from driving off the highway on to their land.”

The appeal in respect of the Highway Authority was successful, with the claimant allowed to proceed with the case on limited allegations involving the acuteness of the bend.

This is a tragic case which provides further helpful clarification on the Occupiers Liability Act 1984 for occupiers of land adjacent to highways, where there is a risk that a highway user could leave the highway inadvertently.

It should be noted that the Clamant seeks Permission to appeal to the Supreme Court.

Clyde & Co Partner Sharon MacArthur-Powell and Julian Horne of St John’s Chambers represented the 2nd Defendant.

The link to the judgment is here.


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