Court of Appeal decision in fatal claim brought under OLA 1984 and against highway authority

In Brown v South West Lakes Trust and others [2022] EWCA Civ 18, the deceased had driven her car off a road and into a reservoir as a result of which she tragically drowned. A fatal accidents act claim was brought against the Highway Authority on the basis that it had carelessly designed the road with too tight a bend and no crash barrier. This claim was struck out at first instance but reinstated by the Court of Appeal. Such a claim is one of misfeasance, not non-feasance, as the defendant recognized on appeal.

The claimants also brought a claim against the occupiers of the reservoir under the Occupiers’ Liability Act 1984. This claim was struck out at first instance and the strike out was upheld on appeal. The Court of Appeal considered that the case was indistinguishable from Tomlinson v Congleton Borough Council [2004] 1 AC 46 even though Tomlinson involved the deliberate decision to perform a dangerous activity and here the deceased inadvertently drove into the reservoir. Accordingly, the Court of Appeal considered that there was no risk of injury “by reason of any danger due to the state of the premises” within the terms of s.1(1)(a) of the 1984 Act. The danger was, per Dingemans LJ, because of the deceased’s driving.

The Court of Appeal also dismissed the claim on the basis that there was no real prospect of overcoming s.1(3)(c) which invites the court to assess, having regard to all the circumstances of the case, whether the occupier may “reasonably be expected to offer the other some protection”. Per the CA, as the claimants did not qualify for a claim in public nuisance, which required them to prove that the reservoir would deter prudent persons from using the highway, this threshold could not be crossed.

The claimants are seeking permission to appeal from the Supreme Court.

Rob Weir QC appeared for the claimants with James Marwick of St John’s Chambers, instructed by Kate McCue of Chris Kallis solicitors.

A copy of the judgment can be found here.

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