Benjamin Michael Brown v South West Lakes Trust

For a duty to arise under section 1 of the Occupiers’ Liability Act 1984, injury must result from a danger due to the state of the premises. A reservoir does not become such a danger merely because a vehicle leaves the highway and enters it. The driver’s inadvertence does not alter that conclusion.

Further, an occupier of land adjoining a highway is not ordinarily required to protect motorists from driving off the highway onto that land. By contrast, a highway authority may be liable where it negligently creates a danger by designing or constructing a highway below prevailing safety standards, provided that defect may have caused the accident. Such a claim is one of misfeasance, not a complaint of nonfeasance.

Mrs Brown’s car left a highway beside Stithians Reservoir, passed through a wire fence, entered the reservoir and became submerged. She died, and her husband and children brought fatal-accident claims against the reservoir’s occupiers and owner, and against Cornwall Council as highway authority.

The High Court struck out all claims and granted reverse summary judgment: [2021] EWHC 469 (QB). The claimants appealed. They contended that the occupiers owed a duty under the Occupiers’ Liability Act 1984, and that the council had negligently designed and constructed a bend in the highway which was excessively sharp.

The central issue was whether the pleaded facts disclosed viable duties and a real prospect of success.

1. Appeal allowed in part. The court unanimously dismissed the appeal against South West Lakes Trust and South West Water. It allowed the appeal against Cornwall Council only insofar as it concerned negligent design and construction of the highway.

2. The claims against the occupiers were bound to fail under section 1(1)(a) of the Occupiers’ Liability Act 1984. The statutory duty concerns injury caused by a danger due to the state of the premises. Although the state of premises can include a natural feature, the pleaded danger arose because Mrs Brown’s car left the highway, crossed the verge and fence, and entered the reservoir. Nothing in the reservoir’s state itself created the relevant danger. The distinction from a voluntary activity, such as diving, did not assist: inadvertent entry could not convert the driving event into a danger due to the reservoir’s state.

3. In any event, the occupiers could not reasonably be expected under section 1(3)(c) to protect motorists from driving off the highway onto their land. The limited duties of owners adjoining a highway, including duties concerning objects falling onto the highway, did not extend that far. The pleaded facts also could not establish a public nuisance, since the reservoir did not deter prudent persons from using the highway.

4. The judge was wrong to strike out the pleaded claim that the council had negligently designed and constructed an excessively sharp bend. Causation had been adequately pleaded. If the council or its predecessor had created a bend more acute than prevailing standards permitted, and that defect caused the loss of control, the claim had a real prospect of success. It alleged negligent creation of a danger, and was therefore a claim in misfeasance rather than an impermissible complaint that the authority failed to exercise a power or maintain the highway.

5. The claims against the council as occupier, for failure to maintain the highway, and for failure to exercise powers to install a crash barrier remained struck out and dismissed.

• Court of Appeal (Civil Division): Allowed the appeal only as to the claim that Cornwall Council negligently designed and constructed the highway; dismissed the appeal against the reservoir occupiers and upheld the strike-out of the remaining claims against the council: [2022] EWCA Civ 18.
• High Court, Queen’s Bench Division: Struck out all claims and granted reverse summary judgment for the defendants: [2021] EWHC 469 (QB).