The High Court ruled that a landowner is not liable for injuries sustained when a visitor chooses to engage in an evidently dangerous activity that exceeds the permitted use of the property, especially when the restrictive measures in place serve a high social value, such as security or safeguarding.

Facts:

In April 2019, the claimant was playing an informal game of “headers and volleys” football with friends on the respondent’s premises at Wreake Valley Academy. The football pitch is a state-of-the-art, FIFA-approved, “3G” pitch surrounded on all four sides by a 4.5m high fence. Abutting the pitch to the north is a further fence (the “perimeter fence”) that forms the boundary between the respondent’s school premises and some adjacent playing fields, which are also owned by the respondent and accessible to the public. The perimeter fence is between 2.1m and 2.5m high and is made of green metal mesh, comprising horizontal and vertical struts. This perimeter fence serves as a security boundary between the school grounds and public playing fields, and it contains a locked metal mesh gate with a horizontal bar and a latch hole.

During the game, the claimant accidentally kicked the football over both fences and into the playing fields beyond. Determined to retrieve the ball and feeling pressure from the “banter” of his friends, the claimant approached the perimeter gate only to discover that it was locked with a padlock. Within approximately one minute of arriving at the gate, the claimant “summed up” the obstacle and decided to climb over it. He utilised the gate’s horizontal bar and latch hole as footholds to scale the structure. However, as he reached the top and began to drop down onto the other side, his hand came into contact with a “burr”—a small, sharp protrusion of metal left over from the manufacturing or wear of the vertical struts. This contact caused a severe laceration to his hand, leading him to sue the school for personal injury.

The claimant argued that the school was negligent because the gate was dangerous and there was no adequate system for players to retrieve lost balls without resorting to climbing. He further contended that the school should have provided clear signage, a point of contact to unlock the gate, and a more rigorous inspection to remove the metal burr. The school defended the claim by stating that the gate was locked for essential safeguarding and security purposes to prevent unauthorised public access to the school.

The initial Trial Judge found the claimant to be an honest witness, but ultimately dismissed the claim, as the claimant had made a free and “stark” choice to undertake a risky manoeuvre. The claimant appealed.

Decision:

The High Court dismissed the appeal. The Court applied the “threshold test” established in the landmark case of Tomlinson v Congleton Borough Council. Under both the Occupiers’ Liability Acts of 1957 and 1984, a duty only arises if the risk is due to the “state of the premises”. The Court reasoned that the gate itself was not dangerous, as it complied with safety standards and was safe for its intended use.

The Court held that when a visitor is invited onto a property for a specific purpose (e.g., playing football), that “licence” does not cover any activity they choose to perform. Thus, climbing a locked 2.1m security fence constitutes a trespass. As a trespasser, the school only owed him a duty under the 1984 Act if they knew of a specific danger. Since the school was unaware of the “hidden” burr, they owed no duty of care for that specific injury.

Finally, the Court upheld the finding that the appellant had willingly accepted the risk under Section 2(5) of the 1957 Act.

Implications:

This judgement reinforces the protection of landowners against claims arising from “adventurous” or risky behaviour. This case highlights that a right to be on a property is not a blanket permission to use every part of it in any way. It clarifies the boundaries of a visitor’s “licence” and the extent to which an owner must manage their perimeter security. Moreover, the Court ruled that the duty to maintain child safeguarding and prevent theft (by keeping gates locked) outweighs the duty to provide convenient access for recreational activities.

By climbing the fence, the visitor effectively transitioned from being a “lawful visitor” to a “trespasser”. This is a crucial distinction for property owners in that a physical barrier (such as a locked gate) effectively acts as a legal boundary, one which effectively terminates a visitor’s permission to be in that specific space.