Occupiers’ liability and the threshold test for duty of care (Lillystone v Bradgate)
PI & Clinical Negligence analysis: Upon appeal, the High Court found that a claimant casual footballer paying to play a ‘knockabout’ game at school premises where there were no arrangements in place to retrieve a ball kicked out of play into another part of the defendant’s sports facilities (adjacent sports playing fields) caused his own injury when he climbed a 2.1m gate and severely lacerated his hand. The claimant was a trespasser while climbing the gate between two adjacent parts of the premises where he was not a trespasser. The defendant’s duty of care did not extend to providing any system or facilities to aid ball retrievable, despite the trial judge’s findings that doing nothing and waiting was ‘not what football players would do’. The threshold test imposing a duty of care was not met because the claimant decided to climb the locked gate to gain access to adjacent playing fields. What amounts to ‘reasonable’ safety of visitors under section 2(2) and (5) of the Occupiers’ Liability Act 1957 (OLA 1957) appears to fall firmly within the characteristics equating to a definition of ‘reasonable’ amounting to ‘adequate’, rather than equating to the dictionary definition of reasonable ‘based on or using good judgment and therefore fair and practical’. On the facts and circumstances of this case the sports premises were safe, despite there being no facility for ball retrieval. The danger to the claimant only arose because the claimant decided to take a risk to climb a gate that was an obvious danger. Written by Abigail Holt, barrister at Garden Court Chambers.