Adam Lillystone v Bradgate Education Partnership

An occupier’s duty under the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984 arises only where injury results from a danger due to the state of the premises or to things done or omitted on them. That danger must be distinguished from an activity which a visitor voluntarily undertakes and which carries obvious risks. An occupier generally owes no duty to protect against obvious or self-inflicted risks where the visitor has a genuine choice. A visitor may exceed an implied licence by climbing a locked gate plainly intended to prevent access. In assessing reasonable precautions, the court must consider the likelihood and seriousness of injury, the social value of the activity, and the cost and practicality of preventative measures.

The claimant appealed from HHJ Murdoch’s order dated 1 March 2024 dismissing his claim for personal injury after he cut his hand on a metal burr while climbing a locked gate at a school’s football facilities to retrieve a ball.

The County Court held that he willingly accepted the risks of climbing the gate and that no duty arose under either the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984. The appeal concerned occupiers’ duties, trespasser status, fresh evidence, the adequacy of the respondent’s ball-retrieval arrangements, risk assessment and causation.

1. The application to admit fresh evidence and obtain further disclosure was dismissed. The principles in Ladd v Marshall remained relevant under CPR 52.21(2)(b). The proposed evidence either could have been obtained before trial, was already substantially available, would not probably have influenced the result, or was unlikely to affect causation.
2. Under the Occupiers Liability Act 1957, the statutory threshold was not met. Applying Tomlinson v Congleton Borough Council, the danger arose from the claimant’s decision to climb the gate, not from a danger in the gate during ordinary use. Treating a failure to prevent climbing as the omission creating the danger would be circular. The risks were obvious, and the claimant had genuine alternatives. Section 2(5) also applied because he willingly undertook the manoeuvre, although he underestimated its risks.
3. The County Court was wrong to find that the claimant remained a lawful visitor while climbing the locked gate. Applying Harvey v Plymouth City Council, foreseeability did not establish an implied licence. The gate and fence were plainly intended to prevent access, so climbing the gate exceeded the licence to play football. The claimant was a trespasser. No duty arose under section 1(3)(a) of the Occupiers Liability Act 1984 concerning the unknown burr, or under section 1(3)(c) concerning the obvious risks of climbing.
4. The County Court had applied the wrong standard when assessing the ball-retrieval system. Under Bolton v Stone and Tomlinson, reasonable precautions required consideration of the likelihood and seriousness of injury, the social value of the activity and preventative costs. The measures were adequate. The causation observations were obiter; the injury resulted from the claimant’s voluntary climbing and descent rather than any breach of duty. The appeal was dismissed.

• High Court (King’s Bench Division): on appeal from the County Court at Leicester, the court dismissed the appeal and upheld HHJ Murdoch’s order dated 1 March 2024. It substituted findings that the claimant was a trespasser while climbing the locked gate and that the respondent’s ball-retrieval measures were adequate.