White v The Council of the City and District of St. Albans

Under section 1(3) of Occupiers' Liability Act 1984, an occupier owes a duty to a non-visitor only if all statutory conditions are met. Section 1(3)(b) requires actual knowledge, or reasonable grounds to believe, that the person is or may come into the vicinity of the danger. The question is assessed on the actual circumstances when the injury occurred. It includes the effect of fencing and other measures separating the danger from surrounding areas. Precautions do not themselves establish the required knowledge or reasonable grounds. Where there is no evidence that trespassers used, or were likely to use, the route, the statutory duty does not arise.

White v The Council of the City and District of St. Albans concerned an appeal from an order of His Honour Judge Lovegrove, sitting as an additional judge of the Queen's Bench Division, dismissing a claim for personal injuries. The appellant fell into a gap between council buildings while taking an unauthorised route towards a car park.

The claim alleged breach of section 1 of the Occupiers' Liability Act 1984. The appeal raised liability, contributory negligence and damages, but the argument proceeded on liability and contributory negligence. The central issue was whether section 1(3)(b) was satisfied: whether the Council knew, or had reasonable grounds to believe, that the appellant or persons like him might come into the vicinity of the danger.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Neill gave the principal reasons, and Lord Justice Nicholls and Lord Justice Bingham agreed.

1. The court explained the statutory scheme. Section 1(3) determines whether a duty is owed to a non-visitor. Section 1(4) defines the nature of that duty once it exists, and section 1(5) identifies warning or discouragement as possible means of discharging it. The conditions in section 1(3)(a), (b) and (c) are cumulative.
2. The disputed condition in section 1(3)(b) had to be assessed by reference to the actual state of affairs on the ground when the injury occurred. It was a question of fact. All the circumstances were relevant, including fencing and other features separating the danger from surrounding areas. The court rejected the appellant's contention that the adequacy of precautions could be considered only under section 1(4).
3. The Council knew of the gap, but there was no evidence that the levelled surface had previously been used as a short cut or by unauthorised persons. Fencing, a wall and a wooden barrier indicated that unauthorised persons were expected to keep off the area. Their effectiveness as physical obstacles did not establish that the Council had reasonable grounds to believe that persons might nevertheless use the route. Section 1(3)(b) was therefore not satisfied, and the claim failed without a decision on the remaining liability issue.
4. Lord Justice Neill stated, as an unnecessary alternative observation, that if an occupier knew both of the danger and that someone might come into its vicinity, the occupier might reasonably be expected to offer protection against the danger even to a trespasser. That point was not necessary to the decision.
5. The order was: appeal dismissed; the application for costs against the Legal Aid Fund adjourned for ten weeks; and legal aid taxation of the appellant's costs.

• Court of Appeal (Civil Division): unanimously dismissed the appeal.
• High Court of Justice, Queen's Bench Division: His Honour Judge Lovegrove dismissed the personal injury claim by order dated 10 April 1989.