Adam Lillystone v Bradgate Education Partnership

At the outset of his judgment the Judge made clear that he had found the Appellant to be an “entirely honest and straightforward witness”: Judgment at [2].  

The Judge made the following findings about the Appellant’s accident:

The Judge made the following findings with respect to the Respondent’s premises:

The Judge’s central finding on liability was that the Respondent did not owe the Appellant the occupier’s duty under the 1957 Act because the Appellant had willingly accepted the risks in question, such that section 2(5) of the Act applied.

The Judge found that the Appellant was a lawful visitor to the pitch, the adjacent school car park and the adjacent playing fields, albeit that access to the playing field was prevented by the perimeter fence which included a locked gate. Contrary to the position advanced by the Respondent, the Appellant was not a trespasser on either side of the fence (school side or playing fields side) nor indeed whilst in the act of climbing the gate: [20]-[22]. On that basis, the 1957 Act applied.

However, the Judge concluded that there were “obvious risks” to climbing the gate. The Appellant had accepted that there was a risk of falling, but he was confident that he could climb the gate without incident. The Judge found that “the risks are more obvious than that: falling; impalement on these short spikes that are sticking up [at the top of the gate], twisting ankles and the like”: [34]. He continued:

“35.

In my judgment, the reality is that the [Appellant], faced with the inability to retrieve his ball, decided to undertake an obvious risky operation, that is, climb a 2.1-metre-high gate and, in the process of jumping off, having scaled it he caught his hand. With the downward force of the jump, his hand was lacerated on a burr that had caused him no issue when he was ascending the [g]ate. In my view, he had choices. They were perhaps stark and harsh choices, but he did. The choices were to leave the ball, maybe even have to abandon the game, or find somebody with a key to open the [g]ate to allow him or his friends through. Instead, he undertook a dangerous manoeuvre. He chose that latter dangerous manoeuvre.

36.

In my view, taking into account all those circumstances that I have set out in my judgment, the [Appellant] has failed to establish that the [Respondent] was in breach of section 2 of the [1957 Act]. In my judgment the [Appellant]’s actions fall squarely within section 2(5), that is a risk willingly accepted by the [Appellant]. He assessed the [g]ate. He thought he could climb it safely. Unfortunately, he was wrong and it was the act of climbing the gate that has resulted in the [Appellant]’s injury not a trap by the [Respondent]”.

The Judge went on to consider the position under the 1984 Act, in case he was wrong in finding that the Appellant was not a trespasser. He concluded that the Respondent did not owe the Appellant the duty contended for under the 1984 Act either.

The Judge found that there was no danger in the state of the premises, for the following reasons:

“[T]here is no evidence that, in normal use, any burr on the [g]ate was a danger. A normal user of the [g]ate would not have any reason to put their hand at the top of that [g]ate. But in any event, I have looked carefully at the photographs of the burr and, in my judgment, the reason that the [Appellant] injured his hand was that downward motion. As he jumped, to be frank, even a blunt burr would cause an injury because of the force of his body coming against it. So, the danger was getting caught on a burr that was not sharp when descending the gate, particularly when jumping from it. It was the act of climbing the [g]ate that is the danger and not the [g]ate itself. It is the act of climbing and the act of jumping off the [g]ate that is the cause of the injury and the not the design of the [g]ate itself…in my judgment the [Appellant] would fail on that first hurdle in respect of liability under the 1984 Act”: [37].

Further, even if the burr was sharp, it could not be seen from ground level and the Respondent was not required to have an inspection regime that required it to look at the top of the gate. In those circumstances:

“…[the burr] was not a danger that the [Respondent] would have reasonable grounds to believe existed, and so the claim [under the 1984 Act] would fail on that hurdle”: [38].

Having dismissed the claim on the basis that the Respondent did not owe the Appellant a duty under either the 1957 or 1984 Acts, the Judge was not required to consider whether those duties had been breached or whether any breaches had caused the Appellant’s injury.

However, earlier in his judgment, the Judge had indicated that he accepted that “there was no adequate system in place for players to retrieve a ball from the playing field”: [27]. This was because it was not realistic for someone who had lost their ball to call a number posted on the school website or in the reception area and wait for someone to come from off-site to come and unlock the gate; or to wait for the member of school security staff on site to be located and attend to do so. This was because the teams played football on the pitch for a limited amount of time, football is a “fast, free-flowing game” and waiting was “simply…not what football players would do: [28]-[30].

The Judge went on to say that the above “paints a picture of a failure to have in place an adequate means of ball retrieval”. He said that he had to “consider all the circumstances” and those included that the school had good reason to keep the gate locked given the concerns over public access to the pitch from the playing fields and the need to avoid the risks of security theft and vandalism; that the gate itself complied with the relevant British Standard and the Respondent acted reasonably with respect to the installation and inspection system for the gate in the fence: [32]-[34].

The Judge then went on to make the findings set out at [21]-[24] above about the Appellant’s choices and why he found that no duty was owed under either Act.

The Appellant contended that the Judge had found that if a duty was owed, the Respondent was in breach of it. I do not consider that he did. He rejected the suggestion that a telephone number to locate a member of staff (whether on site or offsite) constituted an adequate system but was sympathetic to the reasons why the gate was locked. There is an element to which he appeared simply to be setting out the arguments in favour of, and against, the proposition that there had been a breach of duty. In my judgment the most that can be said is that the Judge made a factual finding strongly suggesting he would find a breach of duty, if required to do so, but went no further than that.

The Judge had also found that the cause of the Appellant’s injury was his choice to adopt the dangerous manoeuvre of climbing the gate, and then the downward motion as he descended it (see [23] above), rather than any breach of duty by the Respondent.

CPR 52.21(3) provides that the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

In CPR 52.21(3)(a), “wrong” means that the court below (i) erred in law or (ii) erred in fact or (iii) erred (to the appropriate extent) in the exercise of its discretion: White Book 2025, at paragraph 52.21.5.

An appeal court will be very slow to interfere with findings of primary fact made by the court below and will generally only do so where, for example, the findings are “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread”; “where there is “no evidence to support a…finding of fact”, or where the finding was “one which no reasonable judge could have reached”: Byrne v General Medical Council [2021] EWHC 2237 (Admin) at [11]-[15], having reviewed the appellate authorities.

Under CPR 52.21(2)(b), unless it orders otherwise, the appeal court will not receive evidence which was not before the lower court.

Prior to May 2000, the Court of Appeal had power to receive further evidence, but could admit such evidence only on “special grounds”, which, subject to certain established exceptions, were those set out in Ladd v Marshall [1954] 1 WLR 1489, CA. In Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, CA, the Court of Appeal observed that CPR 52.21(2) did not retain the former requirement for special grounds, but concluded that the principles reflected in Ladd v Marshall remain relevant. Those principles are that: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible: see Denning LJ at 1491.

The White Book at paragraph 52.21.3 makes clear that an appellate court should be reluctant to allow evidence relating to a change in circumstances since the hearing or trial: 

“Rule 52.21(2), unlike its predecessor (RSC Ord.59 r.10(2)), contains no qualification concerning matters which have occurred after the date of the trial or hearing. Under the former law, the express (but exceptional) power to admit further evidence as to matters occurring after the date of the trial or hearing was exercised sparingly and with due regard to the need for finality in litigation. See Hughes v Singh Times, 21 April 1989, CA. The position under the CPR was summarised in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] INLR 633, CA, at [34]-[37]. It remains the case that evidence of changed circumstances since the date of the original decision should only be sparingly admitted. Examples of cases in which it was appropriate to admit such evidence were given by Brooke LJ at [34]”.

In R (Iran), Brooke LJ held as follows:

“34.

In the ordinary run of litigation in the courts the legal rights of the parties fall to be decided in accordance with the facts as they appear to the first instance judge. There is little room for the admission of evidence of changed circumstances at the hearing of an appeal. From time to time, however, such evidence was admitted. Case law reveals the following examples under the pre-CPR regime:

i)

Where there has been a change of circumstances after the granting of an interlocutory injunction such that if the new circumstances had been before the judge they would have justified the variation of the injunction (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, 220D);

ii)

More generally, where a change of circumstances since the trial has falsified the basis on which discretionary relief was granted (Attorney General v Birmingham, Tame and Rees District Drainage Board [1912] AC 788, 802);

iii)

Where the passage of time since a trial has falsified a conclusion of the trial court based on complaints of delay (EMA v ACAS (No 2) [1980] 1 WLR 302, 320F);

iv)

From time to time, on the basis that the court should not speculate where it knows, damages will be assessed on the facts as they appear at the date of the appeal hearing (Curwen v Jones [1963] 1 WLR 748, 753; Lim Poh Choo v Camden and Islington AHA [1980] AC 174, 194E).

35.

In Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 HL it was said that the power to admit fresh evidence which showed that damages had been assessed on a false basis should be exercised very sparingly in view of the importance of the principle of finality in litigation (see Lord Pearce at p 1028B and Lord Upjohn at p 1031A).

36.

RSC Order 59 Rule 10, which was the rule in force in the Court of Appeal prior to 2^nd May 2000, provided that:

“(2)

The Court of Appeal shall have power to receive further evidence on questions of fact…but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred since the date of the trial or hearing) shall be admitted except on special grounds. (emphasis added)

(3)

The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.”

37.

It is noticeable that the court’s willingness to admit evidence of changed circumstances was exercised in particular when it was determining whether a restraint as to future conduct should be retained in force or lifted, or whether an award of damages which contained a significant element of crystal-gazing should be altered when more of the material facts had become known. In all these cases the court possessed an appellate jurisdiction over both fact and law”.

The Appellant’s application to rely on fresh evidence on appeal was supported by his witness statement dated 26 June 2025. The application was not served on the Respondent until 10 October 2025. The Respondent opposed the application for the reasons set out in a witness statement from Hannah Hide, Associate Solicitor, dated 20 November 2025.

The fresh evidence arose out of the Appellant’s visit to the Respondent’s premises on 18 May 2025, over a year after the Judge’s judgment dated 1 March 2024. He sought to rely in the appeal on video footage and photographs he had taken during his visit, showing the perimeter fence, the gate, the burr and various signs.

The application initially related to video footage showing the burr. In oral submissions, Ms Holt accepted on behalf of the Appellant that this evidence would fail to meet Ladd v Marshall criterion (1) because it was evidence that could have been obtained with reasonable diligence for use at the trial. In my judgment this was a sensible concession. Prior to the trial, the Appellant had produced numerous photographs of the burr, as well as his own video footage from a visit to the premises on 3 May 2023 which showed the gate. The expert engineers who had visited the premises had not seen fit to take video footage of the burr but could have done so. Accordingly, it was not credible to contend that further video evidence of the burr could not have been obtained before the trial.

The application also initially related to evidence showing “Do not climb” signs which the Respondent had installed on the outside of the gate/fence (i.e. facing toward the public playing fields) after the date of the Appellant’s accident. In oral submissions, Ms Holt accepted that this evidence was not relevant to the issues before the Judge or the issues on this appeal. This was because any such signs, if they had been in place on the day of the accident, would not have been visible to the Appellant who was on the other side of the gate/fence when he climbed it. Again, I consider that this was a sensible concession.

Accordingly, in its final form the Appellant’s application to rely on fresh evidence on appeal was limited to video evidence and photographs relating to (i) “Do not climb” signs on the inside of the gate/fence; and (ii) “Ball retrieval” signs on the inside of the gate/fence. All of these signs had been installed by the Respondent after the date of the Appellant’s accident. The application also sought disclosure from the Respondent of documentary evidence relating to the decision to install these new signs.

The evidence provided by the Appellant about these signs was apparently credible, such that Ladd criterion (3) is satisfied.

However, Ladd criterion (1) is not met. The Respondent confirmed that these signs were installed after the Appellant’s accident, but before the trial. In fact, there was already evidence before the Judge showing these signs. This included evidence from the Appellant himself in the form of the video he had taken on 3 May 2023. One of the new signs is visible at the very end of the footage and the Appellant can be heard referring to it. The Respondent had also adduced evidence at trial of these new signs: Mr Buswell referred to them in paragraph 7 of his statement dated 30 August 2023, and the Appellant’s counsel chose to ask him no questions on this issue when he was cross-examined.

It appears that the potential significance of the footage showing the new “Do not climb” signs was overlooked by the Appellant’s legal representatives and expert before the trial. However, the existence of the Appellant’s 3 May 2023 footage and Mr Buswell’s evidence means that it cannot be argued, now, that the fresh evidence relating to the signs could not have been obtained with reasonable diligence for use at the trial: on the contrary, such evidence had already been obtained and provided to the Judge.

Further, I am not persuaded that Ladd criterion (2) is met by this evidence.

The Appellant contended that the Respondent’s decision to put up “Do not climb” signs after the Appellant’s accident reflected a tacit admission that the system in place at the time of the Appellant’s accident was inadequate. Accordingly, had evidence of the new signs been before the Judge, it would probably have had an important influence on the result. In particular, it would have informed the Judge’s assessment of the Appellant’s pleaded case that the Respondent had “failed to provide the [Appellant] and his friends with any information, instruction, assistance, warning or guidance regarding what to do if a ball went over the Perimeter Fence and needed retrieving” and had “failed to inform the Appellant and his friends what the procedure was in relation to balls that went over the Perimeter Fence”. In essence, the evidence showed that the premises were unsafe at the time of his accident.

I cannot accept this submission for the following reasons.

First, it is not necessarily the case that the installation of the new “Do not climb” signs amounts to the kind of tacit admission by the Respondent contended for by the Appellant. The general principle to this effect was emphasised in Cockerill v CXK Ltd [2018] EWHC 1155 (QB) at [67] where Rowena Collins Rice (sitting as a Deputy High Court Judge) observed that “There is no necessary logic that post-accident improvements must be taken to be suggestive of pre-accident deficiencies, even where, as in the present case, it was accepted that the improvements had been made in the light of the accident”. 

Second, as noted at [19]-[24] above, the Judge dismissed the claim on the basis that no duty was owed to the Appellant under the 1957 Act, because section 2(5) applied; and, in the alternative, that no duty was owed under the 1984 Act. Evidence in relation to the new signs was primarily relevant to the issue of breach of any duty, but the claim had been dismissed before the Judge reached the breach stage.

Third, although the Judge did not address the issue of breach of duty in terms, because he did not need to, he did reach the general factual conclusion that there was no adequate system in place to retrieve balls that went over the pitch and perimeter fence into the playing fields. On that basis, even if the evidence about the new “Do not climb” signs did reflect the admission contended for, it would have made no difference to the Judge’s finding on this issue, let alone been an important influence on it, because the Appellant had already proved that the Respondent did not have an adequate ball retrieval system in place.

For these reasons I decline to admit the evidence of the new “Do not climb” signs in the appeal.

The Respondent had installed these signs in response to the Judge’s judgment on 1 March 2024. The signs provided a telephone number to be called in the case of a ball lost in circumstances comparable to those in this case.

As the signs were not in situ at the time of the trial, it would not have been possible for the Appellant to have provided evidence of them to the Judge. Ladd criterion (1) is therefore met. Again, the evidence provided by the Appellant about these signs was apparently credible, satisfying Ladd criterion (3). However, I do not consider Ladd criterion (2) met.

Ms Cursham, counsel for the Respondent, made clear that her clients did not accept the Judge’s finding that there was no adequate ball retrieval system in place (as is evidenced by their arguments about this finding in this appeal). However, it would have been irresponsible for the Defendant to ignore a judicial finding that its system was inadequate, especially following an accident which had led to personal accident and costly litigation. This submission, no doubt on instructions, shows that the installation of these new signs by the Respondent did not reflect a tacit admission that the signs should have been in place before the Appellant’s accident.

Further, I do not accept that this evidence would have had an important influence on the Judge’s decision with respect to the adequacy of the Respondent’s ball retrieval system for the same reason as is given at [51] above with respect to the new “Do not climb” signs: i.e. the Judge had already found against the Respondent on this issue.

In addition, the Appellant’s evidence was that he did not have his mobile phone with him when he went to retrieve the lost ball (transcript of evidence given on 17 January 2024, p.21). The Judge found he had “summed up” the gate and climbed it within 30-60 seconds of arrival at the gate: [17(iii)] above. In those circumstances, even if the Judge had known about the new ball retrieval signs, and had concluded that they should have been in place before the Appellant’s accident, on the facts of this case the existence of such signs would be highly unlikely to have had any causative impact: the Judge’s own findings make clear that the Appellant was in a hurry to retrieve the lost ball, suggesting that it is highly improbable that he would have waited while a mobile phone was obtained so that the number on any sign could be called.

Finally, this evidence is not within one of the examples given by Brooke LJ in R (Iran) at [34] of circumstances where admitting evidence of changed circumstances after a trial might be appropriate.

For these reasons I decline to admit the evidence of new “ball retrieval” signs in the appeal.

Accordingly, the Appellant’s application to admit fresh evidence on appeal is dismissed.

The Appellant advanced the following grounds of appeal:

The Respondent invited this court to uphold the Judge’s decision for the reasons he gave and for further reasons:

The grounds advanced by the Appellant and the reasons contended for by the Respondent plainly overlap. For ease of analysis, I address the submissions made by each party thematically, and in a different order. I address first those submissions that relate to the duty issue; before turning to those relating to the issue of breach; and then to those addressing matters of causation.

The Respondent’s primary submission was that none of the Appellant’s grounds of appeal overcame the Judge’s unimpeachable conclusion that the Respondent owed no duty to the Appellant in respect of the risks associated with climbing the gate under the 1957 or the 1984 Act, for three key reasons.

First, section 1(1) of each Act limits the duties owed to risks arising from dangers due to the state of the premises or to things done or omitted to be done on them (“the threshold test”): [9] and [10] above.

In the leading case of Tomlinson v Congleton Borough Council [2004] 1 AC 46, the claimant had dived into a lake in a disused quarry at a country park. Lord Hoffman considered that the threshold test was not met, in circumstances where the lake was not dangerous per se, but the risk arose out of the Appellant’s decision to dive into it: [27]. He also rejected the argument that the risk arose through “things done or omitted to be done” on the premises because the lake presented such an allure to would-be swimmers that it was “luring people into a deathtrap”. He found that the “things done or omitted to be done” means activities or the lack of precautions around those activities, such as allowing speedboats to circulate among the swimmers, and that the “trap” did not arise through any danger in the state of the premises. It was “mere circularity to say that a failure to stop people getting into the water was an omission which gave rise to a duty to take steps to stop people from getting into the water”. For these reasons no duty was owed to the claimant under either the 1957 or the 1984 Acts: [28]-[29].

The principles set out in Tomlinson were applied in the High Court of Northern Ireland case of Phillips v South East Education and Library Board [2015] NIQB 91. The Appellant, aged 11, had tried to climb over fencing around a school in order to retrieve a ball that had been kicked over from open ground. At [17], Deeny J (as he then was) found that the danger was not in the design of the fence, but the risk of injury came about if one tried to climb it. No occupier’s duty therefore arose, because there was no danger due to the state of the premises or to things done or omitted to be done on them. At [19], he rejected the Appellant’s submission that the Respondent had created a “trap”, in circumstances where the dangers of climbing the fence were obvious, even to an 11-year-old boy. The judge observed that a “trap” involves “the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger”. The same approach was taken in Wray v Derry City and Strabane District Council [2020] NIQB 39.

The Appellant contended that the factual circumstances of this case could be distinguished from Tomlinson. Unlike Mr Tomlinson, the Appellant was part of a group paying to use the Respondent’s premises to play football and it was the entirely predictable activities connected to playing football which gave rise to the gate in the perimeter fence becoming a source of danger. Further, the Appellant did not ignore any warning signs.

I do not accept this analysis. I consider that the Judge was entitled to conclude, as in Tomlinson, that the danger arose through the Appellant’s decision to climb over the gate, thereby indulging in an activity that had inherent dangers, not through any danger in the gate itself. Here, the Judge’s unchallenged findings of fact were that the danger arose from the burr which was not sharp and posed no risk to normal users of the gate: [23] above. He had made a series of other findings about the safety of the premises, set out at [18] above. Accordingly, there was no danger due to the state of the premises.

As to whether there was any danger due to things done or omitted to be done on the premises, just as in Tomlinson, it would be a circular argument to say that a failure to stop people from climbing over the gate (for example, by providing alternative means for retrieving the ball) was an omission which gave rise to a duty to take steps to stop people from climbing over the gate.

I therefore accept the Respondent’s submission that the threshold test was not met such as to impose upon the Respondent any duty relating to the burr upon the gate and/or the risks of climbing over the gate.

Second, an occupier generally owes no duty in relation to obvious or self-inflicted risks. As Lord Hoffman made clear in Tomlinson:

“46…A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 AC 360”.

Here, the Judge made a factual finding that the risks of climbing the gate were obvious: “falling; impalement on…short spikes that are sticking up…twisting ankles and the like”: [21] above. Applying Lord Hoffman’s approach in Tomlinson, it follows that, even if it could be said that the Respondent owed a duty under the 1957 Act to provide alternative measures to retrieve the ball, it owed no duty to prevent the Appellant from climbing the gate or warning him against these risks which were perfectly obvious.

Third, section 2(5) of the 1957 Act provides that an occupier owes no duty in respect of “risks willingly accepted”. The Judge held that this sub-section applied. I consider that he was right to do so, for the reasons given further at [87]-[96] below.

For these reasons, and those that follow at [76]-[96] below, I uphold the Judge’s finding that the Respondent owed the Appellant no duty under the 1957 Act.

Under this ground the Appellant contended that the Judge’s conclusion that the Appellant had choices (“to leave the ball, maybe even have to abandon the game, or find somebody with a key to open the [g]ate to allow him or his friends through”) was inconsistent with his finding that the Respondent had implemented “no adequate system in place for players to retrieve a ball from the playing field”: see [21] and [27] above. Ms Holt argued that he combination of the physical layout of the fences and the foreseeability of a ball going into the adjacent playing fields, in the context of typical ball-retrieval behaviour of football-players mid-game, created a “trap” for the Appellant, such that in reality he had no alternative but to climb the gate. The Judge’s findings with respect to the Appellant’s choices was therefore said to be an irrational finding.

I cannot accept this argument. It was plainly open to the Judge on the evidence to conclude that the Appellant could have chosen to leave the ball (perhaps to see if a spare ball could be located: see [129] below) or to abandon the game rather than climb the gate. The Appellant contended that it was naïve to suppose that the game would be abandoned. The Judge himself recognised that abandoning the game was a “stark and harsh” choice, as was leaving the ball where it was, but these were nevertheless choices open to him. The Judge referred to the further option of waiting for a key to be located. This was still a choice for the Appellant, even if, as the Judge concluded, waiting for any length of time was something footballers were unlikely to do: [26] above. The existence of these choices means that the Respondent had not created the “trap” alleged. Similar arguments as to the existence of a trap were rejected in Tomlinson: see [66] above.

The Appellant also argued under this ground that the Judge had misapplied section 2(2) of the 1957 Act in failing to take into account the “purpose” for which he was on the pitch, which influenced the choices he had. The purpose included not only playing football but also activities immediately connected with it, including retrieving the ball from places adjacent to the pitch. I do not agree. The Judge’s nuanced findings as to the “stark and harsh” choices open to the Appellant and as to what footballers “would do” illustrate that he was well aware of the purpose for which the Appellant was on the pitch and the particular context of the game.

For these reasons I dismiss the Appellant’s ground 1.

Clerk & Lindsell on Torts (2^nd Edition) at paragraph 11-26 makes clear that the common duty of care under section 2 of the 1957 Act is:

“…more than a duty to avoid negligent acts, but extends to negligent omissions as well.

Not only must the occupier avoid creating dangers himself: he must also take reasonable steps to protect his visitors from dangers which he did not himself create, as where he fails to warn of a hazard not otherwise apparent, or to take steps to remove a danger that materialises without his negligence.

On the other hand, it is submitted that there must be some arising from a defect in the state of the premises. The mere fact that they lack some given amenity will therefore not do, even if the injury may be foreseeable as a result”.

Under ground 4, the Appellant contended that the Judge failed to consider the circumstances of the Appellant’s accident through the prism of the Respondent having createdan obvious danger to visiting adult evening football players. This obvious danger was the significant barrier caused by the perimeter fence between where visiting players such as the Appellant played their game of football and the playing fields where balls would foreseeably end up. Support for the proposition that this was an obvious danger was drawn from the Judge’s findings as to how obvious the risks would have been to the Appellant: see [21] above. The Appellant submitted that, having created this obvious danger, the Respondent had entirely failed to take steps to alleviate the danger. The steps required to do so were cheap and obvious.

I do not accept that this criticism of the Judge is justified.

The Appellant’s counsel had advanced this argument about the creation of the danger to the Judge: see, for example, [14] of her skeleton argument for trial.

However, the Judge simply did not accept this analysis of the factual matrix. Rather, he concluded that (i) there was no danger in the state of the premises because the burr was not sharp and the gate was not a danger if used normally; (ii) there was no danger due to things done or omitted to be done on the premises, because the burr was not sharp and was not a danger that the Respondent would have reasonable grounds to believe existed; and (iii) it was the act of climbing the gate that was the danger and not the gate itself: [23]-[24] above.

In my judgment, these were all findings open to the Judge, based on the evidence he considered. In particular, he was fully entitled to reach the central factual conclusion that the danger in this case was the act of climbing, and that was not a danger the Respondent had created. None of the findings are of a kind identified in Byrne at [33] above, when an appeal court might be persuaded to interfere.

Ground 4 is therefore dismissed.

An occupier owes no duty in respect of risks willingly accepted as his by a visitor: see section 2(5) of the 1957 Act at [9] above.

Clerk & Lindsell on Torts (2^nd Edition) at paragraph 11-42 makes clear that mere knowledge of a risk is not a complete bar to a visitor’s right to recover: the defendant must go further and show that the visitor was volens in that he must be taken to have agreed to bear that risk. Reference is made to Bunker v Brand (Charles) & Son Ltd, the [1969] 2 QB 480, where a claimant walked over hazardous tunnelling equipment with knowledge of the dangers involved but was nevertheless, on the evidence, held not to have agreed to bear the risk of the injuries he suffered as a result.

Under ground 5, the Appellant argued that the Judge had erred in finding that his actions in climbing the gate fell within section 2(5), because he had misapplied the principles set out in the preceding paragraph. The Appellant could not be taken to have agreed to bear the risk because (i) he had assessed the gate as easily and safely climbable; and (ii) he did not know of the presence and position of the burr.

I cannot accept this submission.

First, the Judge made a factual finding that although the Appellant had assessed the gate as safely climbable, he was wrong in that assessment. The Judge also found that while the Appellant had accepted that there was a risk of falling, climbing the gate involved other risks, namely “falling; impalement on…short spikes that are sticking up…twisting ankles and the like”: [21] above. There is no suggestion that the Judge was not entitled to conclude that the Appellant had willingly climbed the gate but under-estimated the risks of doing so, nor could there be.

Second, I do not understand Bunker to be authority for the proposition that a person who willingly undertakes an action, but wrongly assesses the risk of that action, should necessarily be permitted to recover. Rather, the ratio of Bunker, set out at p.489, was that (i) section 2(4) had to be read together with section 2(5); (ii) a warning is a warning of danger; (iii) a warning is not to be treated without more as absolving an occupier, and so too knowledge of the danger by a claimant is not to be treated without more as absolving an occupier from liability, unless in all the circumstances “it was enough to enable the visitor to be reasonably safe”.

Ultimately, therefore, the focus in Bunker was on whether the occupier had done enough to keep the claimant reasonably safe. A key aspect of O’Connor J’s reasoning was that the claimant was an employee, who had been ordered to take the action in question by the occupier, his employer. That is a very different factual matrix to the position here.

Even if the Judge was wrong with respect to the applicability of section 2(5) because the Appellant could not be said to have willingly accepted the specific risk of the burr, the Respondent would still owe no duty to him under the 1957 act because the threshold test was not met and because the Respondent owed him no duty in relation to obvious risks, for the reasons given at [72]-[73] above.

The Appellant also submitted under this ground that the Judge had erred in not considering the issue of contributory negligence. Ms Holt contended that it would have been open to the Judge to find that the Respondent was primarily liable but that the Appellant contributed to his accident by failing to take the same care as to where he was placing his hands as compared to his feet. That is correct, but the issue of contributory negligence would only have arisen if the Judge had found a breach of duty by the Respondent. He did not, because he concluded, correctly, that no duty was owed (see [64]-[86] above). I have also found that he should have concluded that the measures put in place by the Respondent were adequate for the reasons given at [112]-[131] below, effectively precluding any finding of a breach of duty, and thus of contributory negligence.

For these reasons I dismiss the Appellant’s ground 5.

The Respondent contended that the Judge had erred in finding that the Appellant was not a trespasser when he climbed the gate and invited this court to make the alternative finding that he was, such that any duty that was owed to him was under the 1984 Act, but no such duty in fact applied on the facts of this case.

In Harvey v Plymouth City Council [2010] EWCA Civ 860, the Claimant had sustained serious injuries when he fell down a sheer drop from land owned by the Defendant Council onto an adjacent parking area attached to a superstore. There was no suggestion that the Claimant had been invited on to the land or had an express license to be there. The central issue was whether he was an “implied licensee”, specifically whether the implied licence for general recreational activity on the land extended to the particular activities which led to the accident in this case: [16] and [18].

At [20], Carnwath LJ, with whom Longmore LJ and Hughes LJ agreed, cited Hillen v ICI (Alkali) Ltd [1936] AC 65, where it was held that stevedores who were lawfully on a barge for the purpose of discharging it, became trespassers when they went on to an inadequately supported hatch cover to unload some cargo, since they knew that they ought not to use the covered hatch for this purpose. The knowledge meant that the hatch area was in effect “out of bounds” for that purpose and they were to that extent “trespassers” unable to rely on duties owed to invitees or licensees, per Lord Atkin at pp.69-70. Lord Atkin had cited the principle that “When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters - you invite him to use the staircase in the ordinary way in which it is used” (The Calgarth [1927] P 93, 110 per Scrutton LJ).

As Carnwath LJ explained, these principles had been applied in Tomlinson. Prominently displayed notices read “Dangerous Water: No swimming” but the lake was used quite regularly by visitors for swimming. Because the claimant was forbidden from swimming, the case was approached on the basis that, notwithstanding his initial entry into the park as a visitor, he should be regarded as a trespasser when swimming, and therefore subject if anything to the lesser duty owed under the 1984 Act.

Ms Holt contended that the position was very different here. There was no warning sign on the gate. The Respondent had invited the Appellant on to the pitch to play football. The Judge had found that balls escaping into the adjacent playing fields was “clearly a known phenomenon” and that players “do go to retrieve their balls”. On that basis, the Appellant was not acting as a discourteous guest abusing his invitation, but rather as a reasonable football player whose football had been kicked into another part of the occupier’s premises. Further, she submitted that it was artificial and inappropriate for the Respondent to contend that the fence created a “zone of trespass” when this had only occurred due to the Respondent’s own decision to create the significant barrier in the form of the fence, with no means of retrieving lost balls. For these reasons she contended that this court should be loath to interfere with the Judge’s finding on the trespasser issue, which had been reached after careful analysis of the factual circumstances.

In my judgment Ms Cursham’s submissions on this issue are to be preferred.

In Harvey at [27], the Court of Appeal made clear that:

“In deciding whether the Appellant was a licensee, the question was, not whether his activity or similar activities might have been foreseen, but whether they had been impliedly assented to by the [occupier]…When a council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity cannot, in my view, be stretched to cover any form of activity, however reckless.”

Therefore, the fact that the Appellant’s actions in climbing the gate were foreseeable does not mean he had an implied licence to act in that way.

The Judge concluded that the Appellant was not a trespasser when climbing the gate, because (i) he was not a trespasser whilst using the pitch or when approaching the perimeter fence on the pitch side; (ii) he would not have been a trespasser if exercising a public right of way over the footpath on to the playing fields on the other side of the fence; and (iii) he would not have been a trespasser if he had passed through the gate when it was open: [20] above.

However, these reasons failed to take into account the Judge’s own finding that the fence and the gate were “self-evidently there to stop people accessing and egressing the school site”: [18(iv)] above. It was clearly to be inferred that the Respondent did not permit anyone to climb the locked gate, and in doing so, the Appellant exceeded the licence afforded to him to play football on the pitch. It was irrelevant whether the Appellant was entitled to use the land on either side of the fence; he did not have permission to climb over the gate when it was locked.

I therefore conclude that the Judge’s conclusion on this issue was wrong and substitute a finding that the Appellant was a trespasser.

The scope of an occupier’s duty to a trespasser is derived from section 1(3) of the 1984 Act. It involves consideration of whether the occupier knew of the danger or had reasonable grounds to believe it existed; whether the occupier knew or had reasonable grounds to believe that the trespasser would come into the vicinity of the danger; and whether the risk was against which the occupier could reasonably be expected to offer some protection to the trespasser.

Here, there is no challenge to the Judge’s obiter finding that the Respondent did not know of the danger presented by the burr and had no reasonable grounds to believe that it existed: [24] above. Accordingly, section 1(3)(a) is not satisfied in respect of any danger due to the burr and the Respondent owed the Appellant no duty under the 1984 Act for any risk of injury arising from the burr.

Insofar as the danger consisted of the risks presented by the act of climbing the gate, then section 1(3)(c) is not satisfied, because the risk was not one against which, in all the circumstances of the case, the Respondent could reasonably be expected to offer protection to the Appellant, for the reasons given at [72]-[73] above.

For these reasons I conclude that the Appellant was a trespasser when he climbed the gate and I make that alternative finding. However, the Respondent owed the Appellant no duty under the 1984 Act because section 1(3)(a) applied to the risk posed by the burr and section 1(3)(c) to the risk posed by climbing the gate.

The Respondent contended that the Judge erred in his conclusion that there were no adequate measures in place for the retrieval of lost balls.

As noted at [26] above, the Judge essentially concluded that it was not realistic for someone who had lost their ball to wait for the member of school security staff on site to attend to unlock the gate, or to phone a telephone number and wait for someone to come from off-site to do so, because waiting in this context was “simply…not what football players would do”.

To some degree, this finding incorporates a factual assessment of the evidence. I have therefore been very mindful in approaching the Respondent’s submissions on this issue of the need for caution, evidenced by the principles set out in Byrne at [33] above.

I am also very conscious that because the Judge was intending to dismiss the claim on the basis that no duty was owed, he did not need to give exhaustive consideration to the breach issue, to which his “no adequate measures” finding related.

However, on balance I am persuaded that the Judge did err in making this finding, for the following reasons.

First, it does not appear that the Judge applied the correct legal principles.

He should have considered the adequacy of the measures from the perspective of the occupier’s duty of care in respect of dangers due to the state of the premises or to things done or omitted to be done on them under the 1957 Act.

Bolton v Stone [1951] AC 850 at 858 is authority for the proposition that it is not enough that the event in question should be such that it can reasonably be foreseen; the further result that injury is likely to follow must also be reasonably foreseeable. The remote possibility of injury occurring is not sufficient; there must be sufficient probability to leave a reasonable person to anticipate it. The existence of some risk is “an ordinary incident of life, even when all due care…is taken”.

Further, as Lord Hoffmann explained in Tomlinson at [34], the question of what amounts to “such care as in all the circumstances of the case is reasonable” for the purposes of the 1957 Acts depends on assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures.

There is no evidence that the Judge applied these principles rather, he focused on “simply… what football players would do”.

Second, the Judge’s conclusion equates to a finding that the measures in place were inadequate because there was no immediate means of retrieving the ball, which enabled the footballers’ game to continue without any hiatus whatsoever. This standard of adequacy was, in my judgment, incorrect, because it was considered from the unreasonable perspective of footballers who will not tolerate any break in play, even when such break is caused by their own carelessness in kicking a ball over a 4.5m fence. I agree with Ms Cursham that this approach was disproportionate and placed an unreasonably high burden on the Respondent.

It is also pertinent that it was entirely coincidental that the ball had escaped on to land also owned by the Respondent, namely the playing fields. If the ball had been projected on to a flat roof or through a window of the school, or into a neighbour’s garden, it would be unrealistic to suggest that the Respondent ought to have taken steps to prevent someone from putting themselves at the obvious risk of injury by climbing on to a roof, climbing through a window or scaling a neighbour’s garden wall.

Third, had the Judge applied the Bolton/Tomlinson principles to the evidence, he would have found that, while balls escaping was a known phenomenon, there was a low likelihood that someone may be injured in climbing the fence to retrieve a ball. Mr Winter, who had worked at the school for 30 years, explained in his witness statement at [21] that he had not previously received reports of people trying to climb over the fence or of balls frequently going over the fence; and that he was not aware of any other reported similar incident of anyone suffering injury from climbing over the fence, having reviewed three years’ worth of accident reports.

The Judge would also have found that any risk of injury was of a minor injury. The Appellant’s own evidence was that he was confident he could climb the gate “without injury” (transcript of evidence given on 17 January 2024, p.29); and Mr Stringer in fact did so. The burr itself was, on the Judge’s own findings, not sharp.

As to the social value of the activity which gave rise to the risk, the Judge’s finding was that the activity giving rise to the risk was the act of climbing the gate: see [23] above. There is a good argument that there is much less social value in the needs of informal non-league football players to have immediate access to a lost football compared to the health and safety and child safeguarding requirements which justified the erection of the perimeter fence and the locking of the gate.

Fourth, the Judge would have borne in mind the Appellant’s evidence that a key had been located to open the gate no more than five minutes after the Appellant’s accident (transcript of evidence given on 17 January 2024, p.39). This appears to have been sourced from a member of the Respondent’s staff.

Ms Holt sought to persuade me that the evidence before the Judge about whether a member of staff was on site at the time of the Appellant’s accident was unclear. She pointed to the response to the letter of claim sent by the Respondent on 3 October 2019, which suggested that there was no-one on site with a key at the time of the accident. However, this had been superseded by Mr Harrison’s witness statement dated 29 August 2023. At [7] thereof, he confirmed that someone from the premises team was on site in the evening, and that they walked the site every 20-30 minutes, wearing a clearly marked uniform. He maintained this in his oral evidence and could not explain the contents of the 3 October 2019 letter (transcript of evidence given on 17 January 2024, p.63-67).

The Judge would also have taken into account the fact that the Respondent was aware that when a ball has been lost in the past, players were “nearly always” able to access a spare ball from their own, or another, team, or (it seems) simply from balls left “in the nets”: see Mr Harrison’s witness statement at [9].

The Judge would also have had regard to the fact that one obvious and reasonable option open to the Appellant was to explore the alternative means of accessing the playing fields from the other side of the fence, via the public footpath.

In all these circumstances, I consider that had the Judge applied the correct legal principles, he would have reached a different conclusion on this issue. I therefore substitute the Judge’s finding with a conclusion that the measures in place were adequate.

Under this ground the Appellant contended that the Judge had erred in omitting to make a specific finding on his pleaded allegation at paragraph 8(k) of the Amended Particulars of Claim that the Respondent had failed to conduct an appropriate risk assessment.

It was the Appellant’s case at trial that the Respondent had presented him with a situation whereby it was foreseeably likely that he would climb the fence to retrieve a lost ball; the gate was the obvious point for him to have done so because the latch created a toe hold to step in; and as a result, the Respondent should have assessed the safety or otherwise of climbing the gate. However, the risk of balls being kicked into the adjacent playing fields or how such errant balls would be retrieved did not feature specifically in the 3G pitch risk assessment conducted by the Respondent on 15 January 2018 (or the further one conducted after the Appellant’s accident on 28 February 2022).

On appeal the Appellant submitted that it would have been open to the Judge to find that a suitable and sufficient risk assessment would have alerted the Respondent to the foreseeability of balls going into the adjacent playing fields and that a system should be put in place to enable retrieval.

The Judge referred to the risk assessment issue when setting out the Appellant’s pleaded case in his judgment at [13]. It is right that he did not make a specific finding on this allegation of breach. However, I doubt that this would have made any difference to the findings the Judge did make because the Judge had already concluded that there was no adequate system in place to retrieve balls. Any finding that the Respondent had failed to conduct an adequate risk assessment would simply be another element of, or a precursor to, this finding.

In substituting the Judge’s finding with a conclusion that the measures in place were adequate, for the reasons given at [112]-[131] above, I have considered whether the risk assessment issue on its own is a basis for leaving the Judge’s finding intact. I have concluded that it does not. As noted at [124]-[125] above, there was a low risk that someone would injure themselves by climbing over the gate as the Appellant did and the risk of any injury was of a minor injury. Even if a risk assessment for this specific risk should have been carried out, and was not, it is not immediately obvious what other measure would have been put in place. Even if the answer to that question was a “Do not climb” or a “ball retrieval” sign, the Judge’s findings with respect to the speed with which the Appellant decided to climb the fence set out at [17](iii)] above strongly suggests any such sign would have made no difference.

In any event, the Judge’s finding about the adequacy of the Respondent’s ball retrieval system was obiter, and irrelevant to the final result, because the Judge had dismissed the claim at an earlier stage by finding, and correctly, that the Respondent did not owe the Appellant the duties contended for: see [64]-[111] above.

For these reasons I dismiss the Appellant’s ground 3.

In Page v Smith [1996] AC 155, the House of Lords held that once it is established that a defendant is under a duty of care to avoid causing personal injury to a Appellant, it matters not whether the injury sustained was in fact physical, psychiatric or both. As Lord Lloyd explained at 190B:

“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so then he comes under a duty of care to that plaintiff...There is no justification for regarding physical and psychiatric injury as different “kinds” of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff it matters not whether the injury in fact sustained is physical, psychiatric or both”.

Under this ground, the Appellant cited the Judge’s finding that the “obvious” risks of climbing the gate/fence were “falling; impalement on these short spikes that are sticking up; and even if you do not fall, twisting ankles and the like”: [21] above. Ms Holt contended that the Appellant took care not to fall and did not fall, nor was he impaled on a strut: rather, he was injured by a feature entirely unrelated to a fall from height, namely the unexpected burr of protruding metal which neither party were aware of.

Against that background, Ms Holt submitted that the fact that the injury was not of the more obvious type (such as falling) was irrelevant: the chain of causation was not broken. Once the Respondent breached its duty to keep the Appellant reasonably safe, then it was legally responsible for the consequential injuries. Given that it was reasonably foreseeable that the Appellant would suffer some physical injury as a result of the Respondent placing a 2.1m perimeter fence between where he was playing football and where the football would be foreseeably likely to be retrieved from, then it was not necessary for the precise type of harm to be reasonably foreseeable.

In my judgment these assertions of general principle, based on Page, are sound. However, they do not illustrate that the Judge’s decision was wrong. That is because the Judge did not dismiss the claim by erroneously applying Page and, for example, concluding that the Appellant’s injuries had been caused by the Respondent’s breach of duty but that he could not recover for them because they were not of a kind that was reasonably foreseeable. Rather, the Judge found that the cause of the Appellant’s injury was his choice to adopt the dangerous manoeuvre of climbing the gate, and then the downward motion as he descended it (see [21] and [23] above), rather than any breach of duty by the Respondent.

More generally, of course, the Judge dismissed the claim primarily because he found that the Respondent did not owe the Appellant the duties contended for: see [19]-[24] above. All of his observations on the causation issue were therefore obiter.

For these reasons I dismiss the Appellant’s ground 2.

The Judge’s decision is upheld for the reasons he gave for finding that the Respondent owed the Appellant no duty under the 1957 Act. In addition, I uphold his decision on the further, alternative, basis that the Appellant was a trespasser but no duty was owed to him under the 1984 Act; and because even if a duty was owed under either Act, the Respondent had adequate measures in place for the retrieval of lost balls. Further, I uphold the Judge’s finding that the cause of the Appellant’s injury was his choice to adopt the dangerous manoeuvre of climbing the gate, and then the downward motion as he descended it, rather than any breach of duty by the Respondent. Accordingly, this appeal is dismissed.