Higgs v WH Foster (t/a Avalon Coaches)

Under the Occupiers Liability Act 1984, the question whether an occupier had reasonable grounds to believe that a trespasser might come into the vicinity of a danger must be assessed by reference to the claimant, or an identifiable class, at the actual time and place of the accident. General accessibility and a risk of trespass do not establish a risk that trespassers will reach a particular danger. There must be material connecting likely trespassers with that area, such as an allurement, a natural route or evidence of prior trespass. If this statutory condition is not met, no duty arises.

The appellant, a serving police officer, entered the respondent’s coach yard at about 2 am while investigating a suspected stolen trailer. He fell into an uncovered inspection pit and suffered serious knee injuries. His claim was brought under the Occupiers Liability Act 1957 on the basis that he was a visitor, alternatively under the Occupiers Liability Act 1984 on the basis that he was a trespasser. The Recorder found him to be a trespasser, refused permission to appeal that finding, and dismissed the claim because the occupier lacked reasonable grounds to believe that a trespasser might come into the vicinity of the pit. The appeal concerned the proper application of section 1(3)(b).

Appeal dismissed. Latham LJ delivered the judgment of the court, and Maurice Kay LJ agreed. The appellant’s status as a trespasser was not open on this appeal because permission to challenge that finding had been refused.

1. The statutory conditions in section 1(3) of the Occupiers Liability Act 1984 are cumulative. The occupier must know, or have reasonable grounds to believe, that the danger exists; know, or have reasonable grounds to believe, that the person is or may come into the vicinity of the danger; and be reasonably expected to offer some protection against the risk.
2. Section 1(3)(b) requires a fact-specific assessment. It may be sufficient to identify a relevant class of trespassers, but the court must consider the likelihood of the claimant’s presence at the actual time and place giving rise to the danger. The general possibility that trespassers may enter premises is insufficient.
3. The respondent’s premises could be entered relatively easily, and the coaches might attract thieves. Those matters did not establish reasonable grounds for believing that a trespasser might go behind the coaches and come into the vicinity of the pit. There was no allurement, natural route or evidence that trespassers had previously entered the relevant part of the premises.
4. The Recorder was therefore entitled to conclude that section 1(3)(b) was not satisfied. The claim failed under the 1984 Act, and the court dismissed the appeal. It was unnecessary to determine whether the precautions alleged by the appellant would have satisfied section 1(4).

The approach in Donoghue v Folkestone Properties [2003] EWCA Civ 231; [2003] QB 1008 was applied to the present facts.

1. Court of Appeal (Civil Division): The appeal from the Bath County Court was dismissed.
2. Bath County Court: Mr Recorder Adams dismissed the appellant’s damages claim on 13 October 2003. He found that the appellant was a trespasser and that the respondent lacked reasonable grounds to believe that a trespasser would enter the vicinity of the inspection pit.