Lillystone v Bradgate Education: key takeaways for occupiers

Can we have our case back?

Watching in despair as your ball sails over a fence is not an uncommon experience. In this High Court decision from February, the Court considered what duty is owed to the intrepid footballers who endeavour to retrieve their ball. In doing so, the Court reiterated a number of principles which are central to claims brought against occupiers, but often ignored or forgotten. 

The Facts 

On 16 April 2019 the Claimant, “L” was playing on five a side courts at the premises of the Defendant “B”. During the game, the ball was kicked over the 4.5m high fence of the court, and then over a further 2.5 m high perimeter fence into playing fields. L, having “sized up” the fence, decided to climb it. During the process he cut his hand on a protruding metal “burr”.

Initial hearing 

The claim was brought against B via section 2 of the Occupiers Liability Act 1957 (OLA 1957).

At the initial trial, the claim was dismissed. Ultimately, the trial judge found that no duty was owed to L by B as he had willingly accepted the risks associated with climbing the fence, in accordance with s2(5) OLA 1957.

The Appeal

The Claimant appealed from the County Court to the High Court.

The initial part of the appeal dealt with the L’s attempt to adduce new evidence. 

The new evidence was in the form of photographs of “no-climbing” signs which had been erected after the incident, video footage of the burr, and photographs relating to a ball retrieval system.

The Court rejected this application. Following the process outlined in the case of Ladd v Marshall, the Court first found that the video footage of the burr could have been obtained and used at the original trial.

Secondly, it was considered unlikely that the no-climbing signs would have had an important influence on the trial. They were not a tacit admission of liability, as advanced by L. The Judge concluded that post-accident improvements do not have to be taken as suggestive of pre-accident deficiencies.

Thirdly, the ball retrieval system was found to have been unlikely to have had an important influence on the trial. The trial judge had found at first instance that the ball retrieval system was inadequate. However, as detailed above, he concluded that this was not relevant, as the claim had been dismissed on the basis that the Claimant has accepted the risk in question.

With the application to introduce new evidence rejected, the hearing moved to the L’s grounds of appeal: 

1. The decision was irrational and contained inconsistencies of reasoning;
2. The Judge erred in not finding that L’s injuries flowed from a lack of safe means of retrieving the ball;
3. The Judge erred in not addressing L’s claim that B had breached its duties by not conducting an adequate risk assessment;
4. The judge erred in failing to find that B should have avoided creating a danger;
5. The Judge erred in concluding that the risks had been willingly accepted by L.

Ruling for B, the appeal was dismissed.

Ultimately, the Court found that:

1. The injury arose due L’s act of climbing the fence, not as a result of the state of the premises;
2. L could have abandoned the ball, he was not forced to climb the fence;
3. B did not create the danger. The fence was perfectly safe if used properly. The danger came from L climbing the fence.

Comment 

This case usefully highlights a number of important issues which are too often overlooked in claims made against occupiers.

Firstly, the type of activity that a Claimant is involved in should be central to each case brought via OLA 1957. Visitors to properties are there via a licence provided by the occupier. This case is a helpful reminder to consider whether the Claimant’s injury has occurred in the context of a permitted activity, or whether, as in this event, the injury has arisen due to a danger that could have only arisen as a result of what was a non-sanctioned activity. 

And secondly, just because an item on premises has caused injury, it does not make it necessarily dangerous. As outlined in this case, the fence was safe if used correctly. The fact that the metal burr cut the Claimant’s hand did not make it inherently dangerous for the purposes of OLA 1957.

The action of the Claimant should always be considered. Even if it appears to be a rational activity, it does not necessarily follow that the occupier will be liable, especially if that activity is not sanctioned by the property owner.

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