When does a visitor become a trespasser?

In Slawomir Kolasa v Ealing Hospital NHS Trust (2015) the Court considered the scope of an occupier's duty of care under Section 1(4) of the Occupier's Liability Act 1984.

For public bodies, such as hospitals, who are responsible for community buildings this is a useful case that examines at what point a lawful visitor may go beyond the permission granted by the occupier and fall within the remit of the less onerous Occupier's Liability Act 1984.

The facts of the case are that the Claimant was intoxicated when he was brought into A&E. He discharged himself and sustained his injuries after he climbed over a wall outside the hospital and fell 30 feet to the ground.  He brought a claim against the Defendant Trust under either the Occupier's Liability Act 1957 as a lawful visitor or, in the alternative, the Occupier's Liability Act 1984 if the Court concluded that he was a trespasser.

The Court concluded that the Claimant willingly left the hospital and walked outside, where he deliberately climbed over the wall and dropped to the ground. As such, it was held that he was not a lawful visitor at the time of the accident.  The court went on to conclude that the Trust did not breach its duty under the 1957 Act and climbing over the wall was not an action covered by the general permission to be on site as a patient.  He had therefore become a trespasser and the duties set out in the 1984 Act applied.

The Court founds that the perimeter wall and its drop did not represent an inherent danger; the area was well lit and the danger of the drop was obvious by day or night.  As such, no warning signs were necessary. The retaining wall was of sufficient height, it was not in a defective state and did not need guarding.  A handrail had been installed on top of the wall but this was to prevent people from sitting upon it, as it was near to a coffee shop.  It was the activity of sitting on the wall that was unsafe, not the wall itself. 

Although he was drunk, the Claimant had willingly accepted the risk of climbing over the wall and no duty was owed to him by the Trust. The accident was entirely his fault and the claim was dismissed.

This claim applied the principles established by the House of Lords in Tomlinson -v- Congleton in which the 1984 Act was considered by the House of Lords who held that a lake did not present a risk due to the state of the premises. In Tomlinson there was nothing that gave rise to a duty on the part of the local authority and the Claimant had been held to have voluntarily chosen to engage in an activity that had inherent dangers, and the local authority was not required to take steps to prevent the Claimant from diving in or to warn him against dangers which were obvious.

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