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Higgs v W H Foster - Trading as Avalon Coaches, Court of Appeal, 1 July 2004

20 July 2004
The issues

Occupiers Liability Act 1984 – Trespasser – Uncovered Inspection Pit

The facts

The Claimant was a police officer who in the early hours of 29th April 1999 was investigating a suspected stolen trailer parked in the service yard of a supermarket in the centre of Glastonbury. The Defendant owned an open area of land on which he kept his coaches. Towards the rear of the property was a pit. It was between 27 inches and 33 inches wide and 40 inches deep and was used for inspecting the underside of the coaches. The usual practice was for a coach to be parked over it. On the night in question there was approximately 10 foot uncovered to the rear of the coach. There were two security lights on the walls of the buildings running down one side of the property.

The night was dark. The Claimant had a torch with him. He did not use the torch notwithstanding that he stated he was unable to see where he was putting his feet. In those circumstances he fell into the inspection pit entirely unaware of its presence.

The Judge found that the Claimant was a trespasser and the Claimant was refused permission to appeal against that particular finding. The Judge dismissed the claim. The Claimant appealed.

The decision

The Occupiers Liability Act 1984 provided (at 1(3)(b) that an occupier of premises owed a duty to another who was not his visitor in respect of any risk relating to any danger due to the state of the premises or to things done or omitted on them if the occupier knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger and the risk is one against which in all the circumstances of the case he may reasonably be expected to offer him some protection.

In Donoghue v Folkestone Properties [2003] The Court of Appeal had made it clear that although it may be sufficient for a Claimant to show that he was one of a class of trespassers whom the occupier had reason to believe may be in the vicinity of the danger, the existence of the duty had to be determined by reference to the likelihood of the individual Claimant’s presence in the vicinity at the actual time and place that gave rise to the danger to him.

It was suggested that the Defendant knew or should have known that the Claimant was in the vicinity of the pit. The Court therefore had to consider whether there was any material which could justify the conclusion that someone like the appellant might have gone round to the rear of the coaches into the vicinity of the pit.

The only such material was the assertion that because the premises could be easily entered by a trespasser that established reasonable grounds for the respondent to believe that a trespasser might do so. But that did not support a conclusion that such a trespasser might go behind the coaches. There was nothing in the nature of an allurement which could attract someone to that area. Nor was there anything to suggest that the rear of the coaches formed a natural route for a trespasser to take from one place to another.

Appeal dismissed.

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