I'm interested in…

  • Strategy & Procedure
  • Catastrophic Injury
  • Professional Indemnity
  • Motor
  • Fraud
  • Disease
  • Liability
  • Commercial Insurance
  • Costs
  • Local Authority
  • Scotland

Visitor or trespasser?

Driver v The Painted House Trust & Anor (2014)
11 April 2014


The Claimant sustained a significant head injury when she fell down a slope into a “dry moat” at an archaeological site - the Dover Roman Painted House. The injuries led to her developing epilepsy and prevented her from returning to her pre-accident job as a teaching assistant.

The accident occurred in the early hours of the morning on 15 July 2007.  The Claimant, who had no memory of the accident, had been out for the night with a friend.  The pair had been waiting for a taxi in the car park at the entrance to the site.  They had been leaning against a wall in the car park.  Behind the wall the ground sloped downwards approximately 4 metres. The wall ranged in height between 870 – 970 mm and had been erected in 1977 to prevent children being tempted to roll down the slope.

The case proceeded to a split trial on liability.


The Judge was required to determine a number of issues:

  • How the accident had actually happened;

  • Which of the Defendants was the occupier of the property;

  • Whether the Claimant was a lawful visitor such that the Occupier’s Liability Act 1957; applied, or a trespasser so that the Occupier’s Liability Act 1984 applied; and

  • Whether there had been a breach of duty.


Dismissing the claim, Judge Leighton Williams QC held:

  • The Claimant’s witness was not impressive.  The Judge found that she and the Claimant had been out drinking and that the Claimant had drunk the equivalent of half a bottle of vodka.  She had deliberately climbed over the wall because she needed to “relieve herself”.

  • The Second Defendants, who owned the land, were occupiers of the slope and were joint occupiers of the car park and wall with the First Defendants who had built the wall and who maintained it and the car park.

  • The Claimant was a trespasser so the 1984 Act, applied.

  • Referring in particular to Harvey v Plymouth Corporation (2010) and Tomlinson v Congleton Borough Council & Anor (2003) the Judge held that the Claimant had no invitation to go onto the land for the purpose that she did. 

  • The Judge asked himself the question why the Claimant was there and whether her presence could reasonably be in the contemplation of the occupier. 

  • The question then was whether there was a danger to the Claimant due to the state of the premises:

    • The Judge rejected the submission that the wall was unsafe because it was lower than the regulations required at the time of its erection.  Per Green v Building C (1993) failure to comply with building regulations does not necessarily mean that something is unsafe – it was not instinctively low and there had been no other recorded adverse incident since it had between built, despite the site having been visited by approximately 650,000 people since the wall was built;

    • The submission that the moat was a trap or hidden danger at night was also rejected – the lighting in the area was sufficient and the trees were recognisably planted below the level of the car park;

    • Even if the site was dangerous at night, the occupiers would have had no reasonable grounds to believe that someone may come into the vicinity of the danger and cause a problem that required their attention.

  • The Judge went on to state that, even if the Claimant had succeeded her damages would have been reduced by more than 50% to reflect her own contributory negligence.


  • Although a first instance decision this is a useful judgment summarising the key points in Occupier’s Liability cases.  We are reminded that:

    • The test of who is an occupier is not about ownership of the land but about control.

    • There does not need to be an express prohibition on an activity to render somebody a trespasser – per Tomlinson the principle is that “those who come on to land without invitation or permission should not ordinarily be able to force duties upon unwilling hosts”.

    • A failure to comply with regulations – such as in this case regarding the height of the wall – does not mean something is dangerous.  All the facts must be considered when deciding if there is a danger.

    • The question as to whether there is a danger is only one part of the test to be applied when determining an occupier’s liability to trespassers under the 1984 Act.  Here the Claimant failed on the first point but, even if there had been a danger, the occupier must be reasonably aware of it in order to be under a duty to have done something about it.

  • This is a common sense decision which follows the judicial approach seen in Tomlinson and Harvey v Plymouth CC  that ”it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land”.

  • Understandably, a court’s sympathies often lie with claimants who have sustained serious injury and that can be an important factor in deciding whether to defend or pay. The temptation for clients in cases such as these is to buy off the litigation risk but this case highlights that it is sometimes worthwhile taking the right case to trial.


For further information, please contact Liz Harrison on 0151 907 3419. 

By Liz Harrison

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.