Kolasa v Ealing Hospital NHS Trust

The Occupiers’ Liability Acts impose an occupancy duty, not a general duty to supervise or protect visitors and trespassers from dangers created by their own activities. Under the Occupiers’ Liability Act 1984, the relevant risk must arise from the state of the premises or from something done or omitted on them. An obvious risk need not be guarded against by additional railings or warnings where those measures would not prevent the activity causing the injury.

The claimant, attending the defendant hospital after an apparent assault, left the accident and emergency waiting area while heavily intoxicated and climbed over a perimeter wall, falling about 30 feet and suffering severe spinal injuries. He claimed under the Occupiers’ Liability Act 1957 and, alternatively, the Occupiers’ Liability Act 1984. The central issues were whether he remained a visitor or had become a trespasser, whether the wall or surrounding premises created a relevant danger, and whether the statutory duties required additional protection or warnings.

1. The claim was dismissed. The claimant’s deliberate conduct in climbing over and releasing himself from the wall was the entire cause of the accident.
2. The claimant had initially been a visitor, but his conduct in climbing over the wall exceeded the scope of his permission, so that he was a trespasser when injured. The judge applied The Calgarth [1927] P 93.
3. The duty under both Acts was an occupancy duty concerning danger arising from the state of the premises, or from things done or omitted on them. It was not a general supervisory duty. The judge applied Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953.
4. The wall was of adequate height, the substantial drop was obvious, and the area was well lit. Knowledge that people sat on parts of the wall did not establish knowledge of the distinct risk that someone would climb over it. Additional railings would not have prevented the claimant’s deliberate conduct. The judge applied Tomlinson v Congleton Borough Council and another [2002] EWCA Civ 309 concerning subsequent remedial action.
5. The conditions in section 1(3) of the 1984 Act were not satisfied. There was no relevant danger due to the state of the premises, no sufficient awareness of the relevant risk, and no reasonable expectation that further protection should have been provided. No warning was required because the risk was obvious, and section 1(6) would independently exclude a duty because the claimant willingly accepted the risk.
6. If the claimant had remained a visitor, the defendant would have discharged the common duty under section 2(2) of the 1957 Act.