THE DUTY OF CARE OWED TO A TRESPASSER: A TRAGIC CASE CONSIDERED BY THE COURTS

October 13, 2021 · by · in Fatal Accidents, Personal Injury

In Ovu v London Underground Ltd (duty of care) [2021] EWHC 2733 (QB) Master McCloud considered the duty of care owed to a trespasser.  Her judgment starts with a reminder that this is a case about the death of a young man and involves a bereaved family.

“With most things in the Law, cases have a triangular character, such that what is at once personal or private between the parties becomes, in the panopticon of the court, both a legal and a public matter. The relatively abstract nature of the law with which this case deals should not detract from the fact that at the heart of this case is the loss of a life of a young man, whose family is bereaved, after he fell to his death at a London Underground station.”

 

THE CASE

Mr Ovu was travelling on the London Underground alone at night.  He went into an unauthorised area of a station and fell down the stairs. At the Coroner’s inquest recommendations were made as to the improvement of the process for checking the exit structures.

Mr Ovu’s family brought an action following his death.  The issues involved included whether a duty of care was owed and the extent of that duty of care.

THE MASTER’S JUDGMENT

The Master found that Mr Ovu was a trespasser at the time he died. She further found that there was no breach of the duty owed by the defendant.

Was a duty of care owed by the Defendant to the Deceased at the time of his death?
  1. It is I think obvious and uncontentious that (whether or not some further or additional duty may have been owed to the Deceased), my conclusion above that he was a trespasser at the time of his death implies that at the very least the duty to non-visitors under the Occupier’s Liability Act 1984 applies namely: where there is any danger due to the state of the premises or to things done or omitted to be done on them there is a duty to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned, if the occupier is aware of the danger or has reasonable grounds to believe that it exists and knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned, and the risk is one against which, in all the circumstances, of the case, he may reasonably be expected to offer the other some protection.  (The above wording is intended to summarise the effect of the 1984 Act).
  2. That partly answers both questions (b) and (c), ie the question of existence of a duty and its scope simply taken from the 1984 Act. It does not address the wider case of the Claimant, and that was that the law permits a duty of care at common law outside or in parallel with the Statutory duties towards trespassers or visitors and that on the facts of this case based on the words of the 1984 Act s.1(4), and also at common law, the Claimant owed Mr Ovu a duty to act so as to ensure that the Deceased “was reasonably safe from danger using the station” and that in securing the emergency gates in the circumstances pleaded, it breached that duty.
Do the Acts exclude any other possible duties at common law towards trespassers?
  1. I must first consider whether the law in principle permits a duty towards a trespasser to co-exist at common law alongside the duties set out in the 1984 Act. We see from s1(1) of the 1984 Act that the rules enacted by that section have effect, in place of the rules of the common law, to determine whether any duty is owed by a person as occupier of premises other than his visitors in respect of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them and, if so, what that duty is.
  2. Does s.1(1) operate to replace rules of the common law in respect of duties which may be owed to non-visitors, in all instances?  Both the 1957 and 1984 Acts refer to the ousting of the common law in similar terms but it is instructive to consider that in Spearman, where the Claimant fell under the 1957 Act, the Hospital was held to owe a duty of care in parallel with that under the 1957 Act. I was taken to discussion of the interpretation of the 1957 Act in Clerk and Lindsell 23rd ed on this point. The learned authors concede there that the phrasing of the Act could be read as meaning that the legislation applies to replace the common law in respect of any injuries caused by negligence on the part of the occupier of land.  However the learned authors conclude, in my view persuasively, that the reference to ‘danger due to the state of the premises or to things done or omitted to be done on them’ is intended to echo the prior common law on ‘occupancy duties’ that is to say negligence (by activity, omission or state of premises) which give rise to a danger due to the state of the land itself, and not to ‘activity’ duties such as the holding of (say) a dangerous event such as a firework display, which on the authors’ analysis falls to be determined outside the Acts. The authors refer (at note 10 in the extract provided to me from 11-04 to 11-07) to Lord Hoffman in Tomlinson v Congleton at 26-27 in relation to the 1984 Act to the effect that the fact that a person may get into danger on a given piece of land is not itself a peril due to the state of the premises, and that even if the occupier’s acts or omissions may concurrently affect his safety this does not widen the ambit of the Act. Supporting that we see Revill v Newbery in which the reckless shooting of a trespasser was not something governed, for liability purposes, by the 1984 Act but was a matter for the common law.
  3. In the same note the authors cite Keown v Coventry NHS Trust [3] where trespass was admitted such that the 1984 Act applied. A child playing on a fire exit fell and was badly injured. The fire exit was not in disrepair but at first instance the Recorder held that there existed a “danger due to the state of the premises” and rejected an argument by the Trust that there could not be a danger in the absence of a faulty state of repair and he said that, in coming to this conclusion, he had particularly in mind, “the height to which a person using the steps could climb and the fact that any fall from virtually any part of the fire escape was likely to carry with it a serious risk of injury”, that the Trust was aware of the circumstances giving rise to the danger, knew that children played in the grounds and that there was a risk of their coming into the vicinity of the fire escape and that the risk of suffering injury by reason of the danger due to the state of the premises was a risk against which the Trust might reasonably be expected to offer some protection. Liability was upheld. On appeal the Court of Appeal reversed the decision holding that, even in the case of a child in those circumstances (and a fortiori in the case of an adult: see Keown at para. 11 per Longmore J) the threshold for a ‘danger due to the state of the premises’ (etc) was not met. Per Lewison J at 28 “Thus in order for the threshold question to be answered in the affirmative it must be shown that the premises were inherently dangerous.”
  4. I conclude therefore that in principle the duties under the 1984 Act apply only to dangers of the sort referred to in the extract from Clerk and Lindsell (and in the authorities cited there) and do not restrict the possibility of liability for breaches of duties in relation to harms from matters not due to dangers arising from ‘occupancy duties’ – ie the state of the premises and the effect on that of activities or lack thereof. In principle therefore there is nothing to prevent in an appropriate case some duty of care at common law in parallel with the duties to trespassers under the 1984 Act.
  5. Was there a duty of care at common law towards the Deceased to ensure that the Deceased “was reasonably safe in using the station” per para 12 (v) of the Reply to Defence? Looking at the other parts of the Particulars, at common law was there a duty “to use reasonable skill and care in securing the emergency gates” (para 9(10) Reply), and “to devise and implement suitable and sufficient control measures to reduce the risk of an accident or injury to members of the public using that transport system… to the lowest level reasonably practicable”?
  6. In turning to this issue, one has to have firmly in mind that when asking whether a particular duty of care is owed, one must ask what risk is it that is being protected against, specifically (per Thorpe LJ for the court in Ratcliff at 27). To start at the other end of the telescope so to speak, and to ask in the abstract what the duty may be is to give rise to a risk of a counsel of perfection especially with the benefit of hindsight in the ‘leisure of the court room’ – per Laws LJ in Ahanonu at 23. If one comes under a duty at common law then it is a duty to take reasonable care in all the circumstances but one must know what risk the duty, if any, seeks to mitigate against. It is important (also per Thorpe LJ in Ratcliff at 27) to see whether the claimant himself was aware of the risk of injury because it was obvious. The risk in that case was that when diving into a swimming pool one may hit one’s head on the bottom. The risk was said to be obvious unless the claimant took care to make sure there was enough water to dive into, which he did not. Furthermore – and continuing with Thorpe LJ’s judgment at 28 – a judge must ask what a defendant would actually be expected to do if it did owe a duty.
  7. What happened in this case was that Mr Ovu apparently slipped and fell on a standard staircase which had no particular defects or unusual dangers of condition. It was much like any other staircase on the Underground whether in public or non-public areas. The harm which befell Mr Ovu was a blow to the head occasioned by the fall, and the risk which he encountered was the ordinary risk of using a staircase, a risk obvious to any adult especially after a few drinks. In my judgment the extent of any duty of care in relation to the risk of a fall on the stairs was to ensure that, in accordance with the 1984 Act, the stairs did not present a particular danger in relation to their state in respect of dangers meeting the criteria in s.1(3), and I would probably go so far as to say that if hypothetically on that evening the Defendant’s staff had been making use of the stairs for their own purposes for some activity such as an impromptu social event and had in the process negligently harmed the Claimant such as by tripping or pushing him, then they may have owed a duty at common law in that regard in parallel with the ‘occupation’ duty of the 1984 Act.
  8. In this instance all we have is a staircase, in normal condition, on which Mr Ovu fell. Nothing was being done on it or to it. There are no measures that the Defendant could sensibly be expected to have taken which would prevent a fall on an ordinary staircase in good condition, given the obviousness of the risk of a fall on any stairs and the enormous implications if it were to be necessary to – somehow – intervene to protect transport users from that normal everyday risk. One cannot for example say that the duty was to take care by preventing access to any steps, or by accompanying passengers, or by policing the competence of users to ensure they were briefed on using steps, or requiring safety equipment to prevent falls, and such would be impractical in modern society in a vast transport system. In Ratcliff, per Thorpe LJ at 37, even simply warning users of the steps (such as by a sign saying “Warning, danger of falling down stairs!”) would not be a step required given that “… even in the case of a lawful visitor there is no duty to warn of a danger that is apparent”
  9. Thus the proposed duty to “devise and implement suitable and sufficient control measures to reduce the risk of an accident or injury to members of the public using that transport system… to the lowest level reasonably practicable” sounds enticing as a general public good, yet it moves into the realm of a degree of unreality where the issue in question relates to protecting the public from the normal risks of every day activity.
  10. What about the possible “duty to use reasonable skill and care in securing the emergency gates”. In this instance there is no nexus between closing gates and someone slipping and falling on steps: this was not an injury caused by  – say – slamming the gate and trapping a finger and nor was the closure of the gate a step which meant that Mr Ovu was ‘trapped’ and obliged to use the particular staircase he chose to use: he was free to leave at any time via the exit and different stairs which opened onto the street, and indeed he had actually gone as far as that gate and elected not to leave. I am not in this case expressing any view on the different set of facts if a situation arose where a person was in fact trapped once they became a trespasser.
  11. The closure of the gate did not introduce some new hazard or amount to an intervention which arguably made matters more dangerous than they were with the gate open (there was discussion of the analogy with my own judgment in Tindall on the subject of whether a duty arises due to an intervention on the ground which changes the risks, but in this instance the risk of a fall on a staircase has no relationship with the state of the gate: it neither lessened nor worsened the risk of a fall whether by changing the state of the premises or by being a dangerous activity carried out by the Defendant). 
  12. In my judgment on the facts of this case and bearing in mind the risk to be protected against, the only reasonable framing of a duty of care falling upon the Defendant could be that provided for under s.1(1) of the 1984 Act, which would arise if the triggering criteria of s.1(3) were met, and that whilst there may be different circumstances where common law duties arise and the law does permit parallel common law duties where the risk and damage does not fall within the scope of the Act, this case does not give rise to such further duties in relation to the specific risk here.
  13. My answers to the issues therefore are:
(a)    Mr Ovu was a trespasser at the time of his death.
(b)   A relevant duty was not owed to him in respect of the risk in question namely falling down stairs and sustaining injury because:
  1.       I have held that there is no basis for a separate common law duty in this instance; and
  2.       a duty under the 1984 Act s.1(4) arises in relation to the stairs only if they posed a danger due to their state (or activities/lack thereof affecting their state), and provided the criteria in s.1(3) were also satisfied. In my judgment the closure of the gate did not give rise to such a danger, nor did the admitted failure to follow internal procedures in relation to checking the exit area after an alarm. The stairs were not dangerous due to their state in and of themselves. The position is in a sense close to that in the Keown case cited in Clerk and Lindsell above.
  1. In relation to the Reg. 28 report, I do not consider that the fact that such recommendations were made impacts upon the existence of a duty of care or its scope, and nor does the prior existence of a policy to search the area beyond the gates in such circumstances. The function of a Coroner’s Reg. 28 report is to improve safety and prevent deaths, which is a public good but the function of the Coroner is not to determine the different question of a duty of care at common law. Likewise the prior existence of a policy to check the exit structure does not establish that the duties contended for here applied as a matter of law.
  2. The decision here will of course disappoint Mr Ovu’s family but I hope some solace can be gained from the Coroner’s recommendations and the changes to communication and policy which took place as a result whereby the Defendant’s staff will now always either check the area, check the CCTV replay or contact the police if they are working alone and feel unsafe to check the exit structure themselves. During the trial I expressed some concern for the CSM who was faced with working alone at night and being expected to check the exit structure, on his own and with the potential of becoming locked out and having to exit the station onto the street, leaving the station unattended while he came back via, one assumes, the public entrance. The outcome of the Reg. 28 report means that now the system has changed so that a CSM cannot find him or herself in that position and will be able to return to the platform. The HM Inspector Assistant of Railways found that the Defendant had failed in its duty to assess the risks to employees in the position of this CSM working alone and that he had been unable safely to follow the employer’s procedures. It cannot be ideal, though I say so entirely obiter, for staff to be in the position of working alone: on that night the CSM should, it appears, have had 2 other members of staff with him (I glean this from the interview with him in the bundle) but one was on paternity leave and there was no cover for the other.
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