ZZZ v The Ministry of Defence

An appellate court reviewing an evaluative factual decision must identify a flaw undermining the conclusion rather than reassess the evidence afresh. An occupier’s common duty of care towards a person required to live in its accommodation does not cease merely because that person engages in foreseeable intoxicated horseplay. Visitor status depends on express or implied permission, and anticipated disapproval of an activity does not alone establish trespass.

Employers and occupiers must keep building safety under review using current professional standards. Although building regulations are not retrospective, compliance with historical standards does not establish continuing reasonable safety. The question is whether a danger should have been recognised. Contributory negligence must be proved by the defendant on the facts established, including the circumstances and duration of the claimant’s response to another person’s conduct.

The claimant was an 18-year-old soldier required by the Ministry of Defence, his employer and the occupier of his barracks, to live in accommodation provided there. After returning from a night out drinking, he fell over a second-floor landing balustrade during an interaction with another soldier, Rifleman Graham. He suffered serious injuries, including a brain injury. The balustrade was approximately 900 millimetres high.

The claimant sued in negligence and under the Occupiers Liability Act 1957. Following a liability trial, HHJ Simon found that the accident occurred during non-malicious playfighting, without great force. He found that the Ministry had inadequately assessed the danger posed by the balustrade, that a higher balustrade would probably have prevented the fall, and that contributory negligence was not established: [2025] EWHC 65 (KB).

The Ministry appealed against the factual findings, the existence of a duty, the rejection of illegality, the findings of breach and causation, and the absence of a deduction for contributory negligence. The central issues were whether the findings were open to the trial judge and whether, on those findings, liability without a deduction could stand.

The appeal was dismissed unanimously. Stuart-Smith LJ delivered the judgment, with which Falk and King LJJ agreed.

1. The factual findings were supported by the evidence. An appellate court must identify a flaw undermining an evaluative decision rather than perform the assessment afresh. The trial judge had recognised the limitations of the untested hearsay statements and the claimant’s inconsistent recollections. Neither the claimant’s pleaded account nor evidence of earlier disagreements compelled different findings about the landing incident. The judge should, as a matter of best practice, have invited submissions before adopting findings that did not precisely reflect either pleaded case. That omission did not justify setting aside the judgment in the circumstances (paras 28–45).

2. The Ministry owed the claimant the common duty of care throughout. The findings established neither the alleged military offences nor affray. The claimant’s response to Graham’s conduct was consistent with his training to de-escalate potential violence. A visitor uses premises with the occupier’s express or implied permission. Knowledge that the occupier would ask someone to stop an activity was not, by itself, sufficient to establish trespass. It was unworkable to treat a soldier required to reside in the barracks as temporarily losing protection against a dangerous balustrade during this interaction. The reasoning in James v White Lion Hotel supported recognition of ordinary residential use and foreseeable carelessness (paras 54–61).

3. The illegality ground failed because its factual foundation was absent. As an alternative observation, the court would also have rejected that ground if criminal conduct had been one of two or more causes of the accident, referring to McCracken v Smith and others (para 62).

4. The Ministry should have kept building safety under review using current professional standards. The non-retrospective character of building regulations did not establish that an older balustrade remained reasonably safe. The question was whether the danger should have been recognised. The evidence supported an obvious risk of a catastrophic fall, foreseeable alcohol-related horseplay and inexpensive remedial work. Earlier assessments that missed the danger were inadequate (paras 64–68).

5. Causation was established by the accepted expert evidence. A concession concerning a forceful, deliberate push did not undermine the conclusion on the materially different facts found: a fall without great force, lifting or a concerted attempt to push the claimant over (paras 69–73).

6. The Ministry bore the burden of proving contributory negligence. The findings concerning Graham’s instigation, the claimant’s trained response, the apparently brief interaction and uncertainty about its precise location did not justify reversing the trial judge’s conclusion. The claimant was not to be criticised for failing to recognise a danger missed by the Ministry’s assessments. No deduction was made, and all six grounds were dismissed (paras 75–78).

• Court of Appeal (Civil Division): In [2026] EWCA Civ 875 , unanimously dismissed the Ministry’s appeal on all six grounds and upheld liability without a deduction for contributory negligence.
• High Court, King’s Bench Division: HHJ Simon, sitting as a High Court judge, determined liability in the claimant’s favour on 17 January 2025, with no reduction for contributory negligence: [2025] EWHC 65 (KB).