01 MAY 2015
Occupiers Liability - Contributory Negligence
Kolasa v Ealing Hospital NHS Trust  EWHC 289 (QB)
19 February 2015
Judge Bidder QC
The claimant was injured following a fall after climbing a wall at the back of a hospital’s Accident and Emergency Department. The claim was dismissed.
On the claimant’s way home from work he drank a significant quantity of alcohol before being assaulted and taken to hospital. He deliberately left the hospital before treatment.
There was a ramp outside by which ambulances left that was some 30 feet high. The area also had a high wall. A witness saw the claimant with his leg over the wall and attempted to stop him by shouting but the claimant then continued to climb over the wall before falling.
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The court noted that the claimant could not remember anything of significance about the events of the night and that his positive statements in his witness statement were as a result of what he had been told and read or what he speculated upon.
There was no history of falls or accidents relating to the perimeter wall but that there had been issues with people sitting on the wall and there was a fatal accident 16 days later. Following that second accident handrails were put in place to deter people from sitting on the walls.
Photographs taken by the claimant’s solicitor in evening light were criticised as being amateur and not adequately representing the quality of lighting outside the A&E.
The court found that the act of climbing over walls was not an act covered by his general permission to be on site and the claimant was a trespasser under the 1957 Occupier’s Liability Act. The court, considering Keown v Coventry Healthcare NHS Trust, noted that protection under the 1957 and 1984 Occupier’s Liability acts is from danger caused by the state of the premises rather than danger one might face whilst on the premises.
The court found there was nothing dangerous about the state of the premises where the claimant fell. The wall was of an adequate safe height, the area was well lit and the drop was obvious. The provision of an additional rail would not have prevented the determined claimant from climbing the wall. Knowledge of the risk of people sitting on the wall was not evidence that the wall and drop represented an inherent danger. The case was dismissed.
Although the defendant was aware of a risk to people, any action they might have taken as a result of that risk would not have prevented the claimant’s specific injury.
Joseph Carr and Amy Wedgwood, Anthony Gold Solicitors