Kolasa v Ealing Hospital NHS Trust [2015] EWHC 289 (QB)

Case No HQ14X00507[2015] EWHC 289 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 February 2015
Before
HIS HONOUR JUDGE BIDDER QCSitting as a deputy High Court Judge
Between
SLAWOMIR KOLASAClaimantEALING HOSPITAL NHS TRUSTDefendant
SIMON LEVENE (instructed by GC Solicitors) for ClaimantWILLIAM NORRIS QC (instructed by Clyde and Co Solicitors) for DefendantHearing Hearing dates: 9-10 February 2015
JudgmentHis Honour Judge Bidder QC :
[1]This is the hearing of liability in an action for damages for personal injury arising out of an accident on the 2nd April 2009 when the Claimant, born on the 10th October 1969 and so 39 at the accident and now 45, fell from a wall at the Defendant’s North Ealing Hospital. He fell some 30 feet and sustained very serious spinal injuries.[2]His claim is under the Occupiers’ Liability Act 1957 or, alternatively, if, which is not admitted, he was a trespasser at the time of the fall, under the Occupiers’ Liability Act 1984. It is accepted that no greater duty of care is owed by the Defendants in negligence and I need not consider that. The Defendants deny breach of duty under either Act and, alternatively, allege contributory negligence extinguishing or reducing any primary liability they may be found to have for the accident.[3]Briefly, the circumstances of the accident were that the Claimant, who is Polish and whose English is not good, had been working as a labourer on the day of the accident in East London. At the end of the day he and 3 colleagues drove to Acton and drank vodka during the course of the drive. There is a live issue as to how much the Claimant had to drink and his state of intoxication as at the accident.[4]At Acton, the Claimant was dropped off and he intended to take a bus home. At the bus stop, he alleges he was assaulted and robbed and was rendered unconscious. He was taken to the North Ealing Hospital’s accident and emergency department. He was not suffering from serious injuries and was briefly assessed by a triage nurse and asked to wait.[5]His case is that he felt unwell and at about 9.45 pm he went outside. There is a ramp which leads up to the A and E up which ambulances drive to wait outside the department. Ambulances can then drive down another ramp to leave the area. The roadway outside the department is some 30 feet above ground level. There was a concrete wall edging the roadway. Beneath the roadway is the lowest floor of the 10 storey hospital building, in what is an undercroft. The walls on either side of both ramps have been measured and vary between 890 mm high (3 ft 2 ½ inches) and 1020 or, possibly, 1080 mm (3 ft 4 inches/3 ft 6 ½ inches).[6]The Claimant has no recollection of the accident. He was seen to climb on to the wall by an ambulance technician called Mark Willoughby. He is the only eye witness to the accident. His witness statement is at page C63 in the trial bundle (“TB”). In his statement he describes first seeing the Claimant with his leg cocked over the wall or one leg either side of the wall near the entrance to A and E. He called out to him something like “What are you doing”. The Claimant continued to try to climb over the wall and by the time Mr Willoughby got to him he was hanging on to the wall. Mr Willoughby tried to grab his hand but he fell.[7]It became very obvious early in the Claimant’s cross examination by Mr Norris QC that he can remember nothing of any significance about the events of the night of his accident and that any positive statements in his witness statement about what happened on that night are purely as a result of what he has been told, what he has read or what he has speculated upon.[8]He is, first, quite unable to say how much he had to drink on the evening in question. This is particularly problematical because of roughly contemporaneous accounts that he gave of his movements that night.[9]In his witness statement in these proceedings he said he left his place of work on the day of the accident at 6 pm but in his statement to the police on 6 May 2009, when he clearly did have a recollection of leaving work, he told a police officer who interviewed him in hospital that he had left at about 5:30 pm-see TB 1,C 41. He remembered his wife calling him at about that time.[10]He had been working in Walthamstow. Again, from the police CRIS log, contemporaneously recorded and computerised from information given at the time by police officers, he must have been assaulted (if he is correct in his recollection of being assaulted) at just before 2052 that evening, probably at about 8:45 pm.[11]I am satisfied that those times can be relied upon.[12]What happened in between is less certain because of the limited recollection of the Claimant, but he recalls that he travelled with two Polish work colleagues from Walthamstow to Acton in a van and was dropped off there. He said that they had shared between them a 700 cl bottle of vodka at his estimate of the number of drinks that he had had varied between one and three. He was not driving, and on the balance of probabilities he did not consume less than one third of the bottle. He says he was not drunk.[13]He accepted that the journey from Walthamstow could be one hour or longer depending on traffic. Even allowing one and a half hours that would mean that he was dropped off at Acton by his colleagues, who he was adamant were not those who assaulted him, by about 7 pm. He had no recollection of what he was doing after that for 1 ¾ hours until he was assaulted.[14]There is, however, some assistance to be gleaned from contemporaneous records. He was actually found by the police - injured to his face, with a bleeding nose, and injury to the eye, a swollen cheekbone and bruising to his fingers - in Montague Road, Ealing, which is over 2 miles from Acton, where he had been dropped off. That information comes from Detective Constable Louise Evans, the police officer who found him.[15]She gave oral evidence to me. At the time of the incident she was just out of her probationary period as a police officer. She was an impressive, careful and intelligent witness. Her statement is at page 87 of TB 1. When she met the Claimant she judged that he was highly intoxicated. He smelt of alcohol and his eyes were glazed. Even with the help of a person at the scene who could speak Polish she found it very difficult to obtain coherent information from the Claimant, who was walking up and down and was agitated.[16]She agreed with Mr Levene that many symptoms of drunkenness could be identical with those of a head injury. In the Claimant's application for compensation to the Criminal Injuries Compensation Authority it is said he had lost consciousness. The officer was very well aware of the danger of confusing drunkenness with the symptoms of head injury but she still made the judgment that the Claimant was highly intoxicated. I bear in mind that in the hospital records made after the Claimant's serious accident there is no mention of drunkenness although there is an assessment (rather difficult to understand without expert assistance) of his Glasgow coma score. The next day a note by a doctor at the hospital to which he was transferred refers to him as being "Ethanolic". It is true to say that there is nothing in the notes to indicate where the doctor obtained that information from.[17]The Claimant was quite unable to say how or why he got from Acton to Ealing.[18]He agreed that the people who attacked him were a second group of Polish people and that they robbed him of his mobile phone, his jacket and his travel card. He said that he had not had a drink with those people but it was quite obvious that he really had no recollection of the period between being dropped off in Acton and being found in Ealing.[19]Again, some better indication of what may have happened comes from roughly contemporaneous documents. The nearest such record is, again, the CRIS log at D 173. At 20. 56. 03 the log reads (and it must be what was reported by a police officer who was at the scene of the robbery):
"The male is Polish and there is another male translating."
At 20. 56. 04: "Victim is called Mr Kolsa”. At 20.56.27: “Male is stating that the suspects gave him alcohol, took him to LCN (location) and beat him up.”[20]When that was put to the Claimant he denied that. However, I know that the Claimant had started drinking something up to a third of a bottle of vodka with his work colleagues. He was dropped off probably about one and three-quarter hours before he was attacked over 2 miles distant from where he was dropped off. DC Evans concluded he was highly intoxicated.[21]On balance, on all that evidence, I accept the conclusion of the officer, which fits with the CRI S log at D 173 and I conclude on a balance of probabilities that the Claimant had met another group of Polish people, had continued drinking with them and had got drunk. What precisely led up to the attack on him will probably never be known.[22]He was taken by ambulance to the Ealing Hospital and went into A&E. There is no triage note. The Claimant does not remember arriving at the hospital although he had a vague recollection of someone being around him and helping him. In his statement at C 12 he says he thinks paramedics sat him on a chair outside the waiting room.[23]Why he left the waiting room is completely unclear.[24]He was next seen by an ambulance technician Mark Willoughby who was replacing a trolley bed in the back of an ambulance on the Road area outside the entrance to the A&E department of the Ealing Hospital to which area access and egress for ambulances is gained by two ramps. The photographs in the trial bundles showed various views of the area including some very recent photographs taken in the early evening. They were taken by the Claimant's solicitor and were available light photographs. With respect to him, they are rather amateurish. The Claimant has not adduced oral evidence as to the standard of the lighting on the roadway outside the A&E department save that his witness Mr Krajewski agreed under cross examination that the area was well lit. That accords with the evidence of DC Evans. I therefore find as a fact that the photographs in the bundle do not adequately represent the quality of the lighting outside the A&E department and that in fact that area was well lit.[25]Mr Willoughby's statement is at 63. In paragraph 12 he says:
"I recall that my attention was drawn to an individual who I now know to be the Claimant who had when I first saw him his leg cocked over the wall or one leg either side with his body on the wall itself. I called out to him words to the effect of "
What are you doing" and moved towards him. The Claimant continued to try to climb over the wall and by the time that I got to him he was hanging on to the wall. I tried to grab his hand but he was just gone."[26]In his evidence in chief to me is said that the patient report at C 73 was completed by his colleague Mr Giles and contained what he, Mr Willoughby, had told him, but he had not read or sign that report. It says "patient jumped from A&E ramp onto grass verge".[27]When asked in chief to remember the incident he said he had seen the gentleman lying on the wall on his stomach, an account which is consistent with his statement. He shouted at him, ran over to him, but he had fallen to the floor beneath.[28]There is no other eyewitness account of the accident. The Claimant has no recollection of what happened. There is really no explanation of what the Claimant was trying to achieve. I am satisfied that this was not a suicide attempt but, equally, it is plain that Mr Willoughby describes a deliberate effort by the Claimant to climb over the wall, which he identified on photo 79 D as the area of wall edging the access road to the A&E and roughly 2 windows up from the A&E canopy, between the two pillars beneath the ramp, between which pillars can be seen a yellow bin. There was a drop of about 30 feet there and in the fall the Claimant suffered a very serious spinal cord contusion causing paralysis of his legs.[29]I therefore find on a balance of probabilities that in a very drunken state, as a result of voluntary consumption of alcohol from about 5:30 PM that evening onwards, the Claimant deliberately left the A&E waiting area, where he had been placed by ambulance staff who had brought him from Ealing and he then walked outside and deliberately climbed over the retaining wall and, probably, deliberately let go and dropped to the floor. He disregarded Mr Willoughby's shout of warning. Mr Willoughby was only an ambulance length away and the Claimant could not have failed to hear the warning.[30]The height of the wall which edged the access road to the A&E varied. According to measurements which can be seen in the photographs taken by the Claimant’s solicitor Mr Singh at D 79p, q and t, it was between about 3 feet high and 3'2" high. However there is always some difficulty about estimating from photographs of tape measures. More accurate measurements can be found in the Safetymark safety consultants’ report of the 29th April 2009, to which report I shall return, at D67 and succeeding pages. That report recorded the height of the walls on either side of both ramps, varying between 890mm (3 feet 2 ½ inches) and 1020 or 1080 mm(3 feet 4 inches to 6 ½ in). The fall was measured at 4.5 metres to the next level.[31]On 18 April 2009, that is, 16 days after the Claimant's accident, a Mr Talbot, a patient at St Bernard's Hospital, which contains patients suffering from mental illness, and which shares a campus with Ealing Hospital, was reported as trying to get up onto the wall (see D 70, the Safetymark, safety consultants’ report commissioned by the Defendant after Mr. Talbot’s accident). The investigation by Safetymark revealed that Mr Talbot made two or three attempts to get up on the wall but then fell.[32]I have heard no eyewitness accounts of what happened in that accident. There are some records of the investigation in the second trial bundles- see D 269 and following pages. Mr Talbot may have "hopped” onto the wall in a sitting position and then fallen. He was killed as a result of the accident. It was not a reportable accident under RIDDOR and was not therefore investigated by the HSE but the Defendant did instruct his safety consultants as a result. Acting on that report Mr Rankine, then assistant director of estates, told the HSE that the trust were going to install a handrail to the perimeter walls to deter people from sitting on the walls. In fact, it appears that Mr Talbot fell at a point around the corner from the A&E, closer to the main entrance near where there is a Costa coffee outlet outside which people tended to congregate for recreational purposes.[33]The work of installing handrails to the perimeter walls on the first floor, not only to the area near Mr Talbot’s fall but also outside A&E was completed in the summer of 2009 with further railings installed later, in 2013, on the perimeter walls of the descending ramps to the roads outside A&E. Those handrails were, I am satisfied, installed as a result of the Trust taking stock and reacting to the death of Mr Talbot and not to the accident to Mr Kolasa. An inquest on the death of Mr Talbot recorded “accidental death”. Suicide was also rejected by Safetymark who concluded that there was some evidence of people climbing on to that wall and sitting on it for relaxation purposes. It recommended a deterrent to people sitting on the wall, namely a metal hand rail. Obviously that handrail would not prevent people who were determined to climb over the wall. The handrail can be seen in many of the photos in the bundle.[34]There is, I accept, no evidence prior to Mr Kolasa’s fall to suggest any history of accidents or of dangerous occurrences relating to the perimeter wall at first floor level and, in particular, to that wall in the area of the A&E where the Claimant fell. On the 8th September 2007 (see D266) there is a record of a suicidal patient “threatening” to jump off the wall. On the evidence before me that is the only record available to the Defendant which has any relevance to Mr Kolasa’s accident and, of itself, would not in my judgment have persuaded a reasonable occupier to make any structural changes to the perimeter wall.[35]Mr Krajewski, a security guard at the hospital between 2008 and January 2012 was called on behalf of the Claimant. He told me that he, on several occasions, had told people not to sit on the walls outside the A&E because it was, as he puts it in his statement, “clearly dangerous”. I accept that the area outside A&E is not a recreational area like the area in front of the Costa Coffee outlet. Mr. Krajewski was cross examined persistently by Mr Norris QC on this issue, it being suggested to him that he was, rather, concerned about their smoking or about their vicinity to the ambulances, but he stood firm and I accept his evidence that he did warn people about sitting on the wall. To the left of the entrance door to A&E was the office of the 6 security guards that patrolled the whole campus and so I accept if people did sit on the walls outside the A&E it is likely that he and his colleagues would see that. Although he was employed by a sub contractor and not directly by the Defendant, other employees of the Defendant within A&E must also have been aware of the practice.[36]Mr. Krajewski also says in his witness statement (para 11 page C56) that at some date he cannot remember he was told by his colleagues that during the day a lady had jumped or fallen from the wall next to the main entrance. This was before the erection of railings. When asked if he had been told she had fallen or if she had threatened to jump, he initially said he could not remember then said he was told it was a fall but he was very uncertain about this and in any event this is second or third hand hearsay. On balance of probabilities, in the absence of any record of a fall, I find that that report related to the threatened jumping in September 2007 that I have referred to above.[37]I agree with Mr. Krajewski’s expressed view that the fact that there is a substantial drop on the other side of the wall is very obvious. That, I am satisfied, is true whether by day or night.[38]PC Evans in her statement at C89 describes the area outside A&E as well lit. It is obvious that there are ramps up to a raised road outside A&E. There are lights under and above the canopy outside A&E. As I have already indicated, Mr Krajewski accepted the area of the ramp outside A&E was well lit. Even if someone had come for the first time to the hospital in an ambulance, who may not have appreciated that the A&E was on the first floor, he or she would have been bound to see, if looking towards the perimeter wall at night, even away from the canopy, the lights in the car park beneath and those of the Uxbridge Road which runs parallel with the front of A&E. No one could fail to notice that the road was elevated.[39]That there was a substantial drop beyond the perimeter wall was a patently obvious risk, by day or night and no warning of it was necessary (though in fact some warning signs have been placed on the wall after the accident – those warning signs are entirely redundant and, of course, could not have been read by the Claimant, who does not read English).[40]I also agree with the submission of Mr Norris QC that the installation of handrails would not have prevented someone determined to climb over the wall, as the Claimant was, I find, for reasons best known to him, doing on the night of the accident. The recommendation of the Safetymark report for the installation of railings was for a feature to be added to prevent people sitting on the wall (D72 – para 6.11)[41]Before I turn to the legal principles which govern this case and the submissions of learned counsel I should indicate that in this case I am not considering any duty of care which might be argued to have been owed to the Claimant by the Defendant as a patient brought to the hospital in an ambulance. He had voluntarily discharged himself from A&E and, rightly, Particulars of Negligence and/or Breach of Statutory Duty (g) to (j) inclusive were struck out of the Particulars of Claim, leaving this a claim purely under the Occupiers’ Liability Acts, to which duties the pleading of negligence adds nothing.[42]I also make the finding of fact that, although when the Claimant was brought to the hospital and was put to wait in A&E he was a visitor to the hospital and was owed the common duty of care under section 2(2) of the 1957 Act, his act of climbing over the wall was not an act covered by his general permission to be on the site as a patient nor was it part of the permission given by the Defendant to patients leaving the site after, or even without, treatment. He was, therefore, no longer an invitee or visitor but a trespasser.[43]To use the famous example of

Lord Justice Scrutton in The Calgarth [1927] P 93 at page 110:

“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.”
[44]Mr. Norris’ primary submission to me is that the protection extended both to visitors and to trespassers under the 1957 and 1984 Acts respectively is from danger caused by the state of the premises, an “occupancy duty” rather than a more general obligation to protect the visitor/trespasser from danger he may face while on the premises. That is clear from the discussion of the law at paragraph 12-04 of the current edition of Clerk and Lindsell on Torts. I accept that submission.[45]The most helpful authority which has been cited to me is the Court of Appeal decision in Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953. That case establishes or re-establishes the principle I have just referred to. The Claimant in that case was an 11 year old child who climbed the underside of an external metal fire escape of an accommodation block and day clinic in the grounds of a hospital owned by the Defendant trust and fell from a height of about 30 feet severely injuring himself. There was evidence in that case that the hospital grounds were known as a place where children liked to play. The claim was brought under the 1984 Act on the basis that the fire escape constituted a material danger and allurement to children. The Claimant accepted he appreciated that climbing the underside of the fire escape was dangerous and that he should not be doing it. The first instance judge found the occupier Defendant one third to blame for the accident as they were aware that children might come on to the staircase. The headnote sufficiently summarises the ratio of the case:
“Held, allowing the appeal, that the threshold requirement posed by section 1(1)(a) of the Occupiers' Liability Act 1984 was not whether there was a risk of suffering injury by reason of the state of the premises, but whether there was a risk of injury by reason of any danger due to the state of the premises; that a fire escape was not inherently dangerous, so that, if a person chose to create danger by climbing it improperly knowing that it was dangerous to do so, any danger was due to such person's activity and not the state of the premises; that, in general, the age of the trespasser was not relevant, but it was a question of fact and degree whether premises which were not dangerous from the point of view of an adult could be dangerous for a child; that the Claimant had been aware not only that there was a risk of falling but also that his actions were dangerous and he should not have been climbing the exterior of the fire escape; and that, accordingly, no risk arose out of the state of the fire escape there being no element of disrepair or structural deficiency”
[46]While every case turns on its own facts, the Claimant’s case here is actually far weaker than that of the Claimant in Keown. In my judgment, there was nothing dangerous about the state of the premises where the Claimant fell. The wall was of an adequate, safe height. It was no lower than walls at the sides of bridges or piers. The provision of an additional rail after Mr Talbot’s accident was the reaction of a risk averse Defendant to the circumstances of his particular accident, which involved someone sitting on a part of the first floor perimeter wall in an area known to be used for recreational purposes, and, thus, falling to his death. The Defendant acted on the specific recommendation of the Safetymark report that the additional railing would deter people sitting on the wall. In my judgment, they could not have been criticised for not erecting the rail. The risk of falling when sitting on the wall was very obvious, whether by day or night. Neither rail nor warning signs were necessary to alert adults or even children to the risk. The report does not evidence that the wall and drop should have been protected or that they were unsafe. They were not. What was unsafe was the activity of sitting on the wall, an activity that Mr Krajewski had sensibly warned several people about prior to Mr Kolasa’s accident.[47]However, that warning or even the knowledge which I find it can be inferred that the Defendant had of people sitting on the wall, does not evidence that the wall and drop represented an inherent danger either visitors or trespassers. It was not a hidden trap. It was easily visible and the danger of the drop obvious by day or night. It was not in a position in which it presented a danger. It was not in a defective state. It did not need guarding.[48]In any event, the railing which the Defendant erected after Mr Talbot’s accident, and because of that accident and the report’s recommendations, was erected to deter sitting on the wall and not climbing over the wall. The railing would not have prevented what the Claimant did, namely to climb over the wall. What was dangerous was not the state of the premises but what the Claimant, an adult, who had voluntarily consumed far too much alcohol and who was drunk, actually did. In truth, this accident was nothing to do with the state of the premises and was, instead, the entire fault of the Claimant, sad though it is to say that, given his very serious injuries.[49]In many ways that decides the case against the Claimant, but in deference to the arguments of both counsel I should consider other legal issues.[50]In the absence of a supervisory duty to the Claimant, as a person who had been attending the hospital for treatment but had discharged himself before he could be seen, and having regard to the deletion of particulars based on a supervisory duty, it matters not that the Defendant could have expected that people who might be drunk and even those who might be in a shocked or upset state due to injury, might be present in or around A&E. The Defendant had not accepted, nor was it under, any duty to take particular care of a drunken adult. There is no satisfactory evidence that the Claimant was in fact suffering from the continuing effects of a head injury, even though there is some very slight evidence he had been concussed.[51]It should be noted that, if the Claimant had been a visitor, section 2 (2) of the 1957 Act imposed on the Defendant a duty to take such care as in all the circumstances of the case was reasonable to see that he would be reasonably safe for the purposes for which he was invited or permitted by the occupier to be there. Those purposes did not include climbing over the wall and I am wholly satisfied that the Defendant did discharge that duty if the Claimant was a visitor.[52]However, as I have found above, he was not a visitor at the time of the accident, he was a trespasser because he had gone further than his implied invitation and had tried to climb the wall. Thus I have to consider the 1984 Act. The relevant provisions of the Act are as follows: “(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine—(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and(b) if so, what that duty is……………. (3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if— (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he 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 (in either case, whether the other has lawful authority for being in that vicinity or not); and(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned. (5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk. (6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).” (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and (b) if so, what that duty is……………. (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he 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 (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.[53]Applying those provisions sequentially, as I have already determined, there was no danger due to the state of the premises and there was nothing done or omitted to be done in relation to the wall that made it dangerous.[54]Although the Defendant was aware of people climbing on to the perimeter wall and sitting on it, that was not the risk presented in this accident. Mr Levene submitted that I should not be too “nit picking” in relation to the designation or description of the “risk” presented and known to the Defendant, but the risk of someone climbing over the wall was of an entirely different nature and the Defendant was not and had no reason to be aware of the existence of that risk.[55]That remains the case, in my judgment, despite the fact that subsequent to the Claimant’s accident the Defendant erected the metal rails. In Tomlinson v Congleton Borough Council and another [2002] EWCA Civ 309, the Defendant was aware of an increased risk of an accident from the unauthorised use of the lake and had begun work on a plan to landscape the shores and plant over the beaches from which people swam. That action did not evidence that the premises were not reasonably safe under the 1984 or 1957 Acts before the work was started.[56]In any event, if climbing over the wall and/or falling from it were the risks concerned and there had been evidence that the Defendant either was aware of them (which it was not) or had reasonable grounds to believe that they existed (which they did not), then they were not risks against which, in all the circumstances of the case, it might reasonably be expected to offer the Claimant some additional protection. I accept Mr Levene’s submission that A&E departments do have drunken people attending them and people with head injuries, but in all the circumstances no further protection than the wall itself, which was of an adequate height, needed to be provided. It was entirely reasonable for the Defendant to have concentrated on the risk actually known to them when it was brought to their attention, namely, the sitting on the wall by certain visitors.[57]Thus, in my judgment, the Claimant has not established that the Defendant owed him a duty of care under the 1984 Act in relation to the risk of his climbing over the wall and falling to the area below. If he had established that they did then I would have concluded that they had taken such care as was reasonable in all the circumstances to see he did not suffer injury on the premises by reason of the danger presented by wall and drop. It would have been going further than was reasonable to raise the height of the wall or put a rail or some other deterrent on top of the wall and it would not have been effective in this case.[58]There was no need to give a warning because the risk was obvious.[59]Finally, although the Claimant was drunk and had sustained some head or facial injury that evening, I am satisfied he willingly accepted the risk of climbing over the wall, though of course it was something he would not have done had he been sober. Thus by reason of section 1 (6) no duty would be owed by the Defendant to him.[60]It seems to me to be quite obvious that, at the time of the accident, the Claimant was a trespasser or, phrasing it alternatively, was no longer a visitor acting within the scope of his permission but, if I were wrong about that, then I am entirely satisfied that the Defendant had discharged the common duty of care to the Claimant under section 2(2) of the 1957 Act by building and maintaining a perimeter wall of sufficient height and adequately lighting the area around the A&E.[61]Mr Norris also argues that the deliberate actions of the Claimant were the entire cause of the accident. As I have already indicated, I consider that is entirely correct and the Claimant would fail on that basis as well. That seems to me a more appropriate way of putting the matter than to say that this is a case where the Claimant is 100% contributorily negligent.[62]For the reasons I have given, therefore, I dismiss the Claimant’s claim.[63]I indicated to learned counsel at trial that, if they were able to agree an order in relation to costs and any ancillary matters I would excuse attendance by anyone when I hand down this judgment. If there are matters which need argument I offer to deal with them on the basis of written submissions but if oral argument is thought necessary I will fix a date and place for those submissions which is convenient to counsel.

Cited in 1 later judgment