A judge has ruled in favour of defendant after ruling the station owner fulfilled statutory duty of care.
A mother who brought a civil action against London Underground (LU) – claiming that the station owner was in breach of its statutory duty of care towards visitors, as well as negligence in common law, when her son entered a restricted area and fatally fell down some fire escape stairs – has had her claim dismissed.
Bernard Ovu had entered a staff-only area of Canning Town station, passing through clearly marked emergency gates and a substantial wire gate. When he reached the fire escape on the other side of the gate, he fell down the stairs and suffered fatal head injuries.
In considering the claim, the judge considered two key questions: Was Mr Ovu trespassing at the time of his death? And did LU owe Mr Ovu a duty of care at the time of his death?
On the first question, the Occupier’s Liability Act 1984 imposes a duty on occupiers to take reasonable care for the safety of trespassers in relation to risk of injury caused by the state of the premises or the occupiers’ omissions. This duty was highlighted by the case of British Railways Board v Herrington [1972], when a child was killed on electrified railway lines after gaining access to the site through a fence in such disrepair that it could not be classed as a deterrent to access. The case set out that the company still owed a duty to the child, but had failed in that by letting site boundaries fall into disrepair.
In the case of Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017], a mentally unstable patient had climbed and fallen from a hospital roof, suffering serious injuries. Roof access was unsecured and not reasonably safe for vulnerable patients, and the patient’s mental state meant he would not have been aware he was trespassing. The hospital was found liable for the fall on the basis of negligence.
'A duty owed to trespassers would have only arisen in relation to the fire escape stairs if they posed a danger'
In Mr Ovu’s case, the judge ruled he was well aware that he was in an ‘off limits’ area, even though he was intoxicated, making him a trespasser at the time of his death.
The next question to consider was if LU owed Mr Ovu a duty of care. As Mr Ovu was a trespasser at the time of his death, there was still a duty owed to him as a non-visitor under the Occupier’s Liability Act 1984, but the issue was whether there was a duty owed to him at common law alongside this.
In principle, duties under the 1984 Act apply only to dangers due to the state of the premises or to things done or omitted to be done to them, and didn’t restrict the possibility of liability in relation to harm from the state of the premises and the effect of activities or lack of. So there was nothing to prevent some duty of care at common law in parallel with the duties owed to trespassers under the 1984 Act.
However, in this case, a duty would have only arisen in relation to the fire escape stairs if they posed a danger. The stairs were not found to be dangerous due to their state or structure, so no duty was owed to Mr Ovu in respect of the specific risk to be protected against – falling down the stairs and sustaining injury. There was consequently no basis for a separate common law duty towards him.
The judge ruled in favour of the defendant, LU, and dismissed the claim.
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