Court of Appeal - judgment handed down 17.1.22

We successfully defended the claim against our client, South West Lakes Trust, before the Court of Appeal in the hearing of the claimant’s appeal against an Order striking their claims out and giving reverse summary judgment.

The decision is a useful examination and restatement of the limits of an occupier’s duties under the Occupiers Liability Act 1984.

The circumstances of the accident giving rise to the claim are tragic. In May 2017, Mrs Hazel Brown was driving along a minor road next to the reservoir at Stithians near Redruth in Cornwall. Her car left the road, crossed a grass verge and went into the reservoir. Mrs Brown was drowned.

Mrs Brown’s husband and two children brought fatal accident claims against three defendants:

• South West Lakes Trust (SWLT) - a charity which leased part of the reservoir and was an occupier
• South West Water (SWW) - the owner of the reservoir
• Cornwall Council (CC) - the highway authority with responsibility for the road.

The claim was brought in terms of a breach of the Occupiers Liability Acts (the OLA) 1957 and 1984 in respect of all the defendants and for a breach of the Highways Acts 1959 and 1980 against CC.

The claimants’ pleaded case against SWLT and SWW was that there was no safety barrier to protect road users against the risk of losing control and ending up in the reservoir. As against CC, the claimants argued that the sweeping left hand bend in the road across the southern end of the reservoir had been negligently designed because it was too tight for drivers to negotiate safely. An additional allegation was that the defendants knew or ought to have known that there was a risk of vehicles leaving the road at this point. There had been a history of incidents of drivers losing control of their vehicles at this location.

The question for the Court of Appeal was whether His Honour Judge Gore QC, who struck out the claims in January 2021 against each defendant on the basis that none of them owed a duty to Mrs Brown, was wrong. The claimants argued that His Honour Judge Gore QC had misinterpreted both the OLA 1984 and the decision of the House of Lords in Tomlinson v Congleton BC [2003] UKHL 47.

The CA held that the claims against both SWLT and SWW were bound to fail because there was no basis for showing a duty existed to the deceased. The danger in this case arose because the deceased’s car left the road and entered the reservoir, not because the premises were inherently dangerous. On this basis the attempt to differentiate between the actions of the claimant in Tomlinson (voluntary assumption of risk) and the deceased (involuntary action in driving off the road into the reservoir) was bound to fail. There was, in fact, nothing in the state of the reservoir which posed a danger to the deceased.

Even if there had been a finding that there was a risk of suffering injury due to the state of the premises, there was nothing which extended the duties of an occupier to preventing drivers leaving the adjoining highway and coming onto their land. Landowners might owe duties to prevent things like tree branches falling onto the highway or not to create a nuisance or danger for its users but neither of these circumstances applied in this case. The presence of the reservoir would not deter “prudent persons” from using the highway and therefore it was not possible to identify on what basis the occupiers of the reservoir might have been expected to offer protection to the deceased.

The CA dismissed the appeals against SWLT and SWW. As a matter of interest, it did allow the claim against CC to proceed on the sole question whether the road was negligently designed.

A novel argument made by the claimants in relation to the deceased being an inadvertent trespasser might on the face of it look attractive but the claimants had to get over the high barrier of establishing that the occupiers’ land and reservoir were in some way dangerous in themselves. The CA was careful to point out that even if it had been persuaded that there was a risk of suffering injury on the premises due to their state, there was nothing which extended the duty of those occupying land to people driving off an adjoining road which did not form part of the occupied premises and for which they had no liability.

Whether the deceased was an intentional or inadvertent trespasser seems irrelevant: no duty would be owed in either case.

We understand that the claimants are considering seeking leave to appeal to the Supreme Court.

For more information or advice, please contact one of our experts in our Complex Injury Team.