Ovu v London Underground Ltd

In the case of Ovu v London Underground Ltd [Ovu v London Underground Ltd (duty of care) [2021] EWHC 2733 (QB) (13 October 2021) (bailii.org)], the Court considered whether Mr Ovu had been a trespasser at the time of his death and whether the London Underground owed him a duty of care.

Facts

Mr Ovu tragically died on 22 January 2017 after falling from a staircase at Canning Town Tube Station, London. Mr Ovu, who was intoxicated, walked through two sets of clearly marked emergency barriers and entered a non-public area of the station.

One of the emergency barriers that he passed through was linked to a silent alarm. The only member of staff working that night was therefore alerted that someone had used the exit barrier. The staff member went to the barrier and closed the gate without checking whether there was anyone beyond the gates. This prevented Mr Ovu from using that exit. There was only one other exit, which was an emergency door that opened onto the street.

Mr Ovu is seen on CCTV walking towards the other emergency doors, but appeared to be unaware that he could open them and so did not attempt to do so. He went back to the emergency barrier he had passed through but was unable to use that exit. Mr Ovu later fell from the stairs and suffered fatal head injuries. The staircase was found to be adequately lit and in reasonable condition.

Mr Ovu’s family brought an action following his death. The following issues needed to be considered:

1. Was Mr Ovu a trespasser at the time of his death;
2. Was a duty of care owed; and
3. If so, the extent of that duty of care.

Was Mr Ovu a trespasser at the time of his death?

It was the family’s case that Mr Ovu had not chosen to leave the premises and his behaviour in trying to re-enter the platform showed an intention to resume his journey towards home. However, the closed gates had prevented him from giving effect to his intention to resume his journey and cease to be a trespasser.

The family relied on the case of Spearman v Royal United Bath Hospitals NHS Trust [2017]. In this case the claimant was being treated at the defendant’s hospital. As a result of either the effects of a brain injury or a hypoglycaemic attack the claimant climbed several flights of stairs and used an internal fire escape to get onto a flat roof, where he overcame a 1.4 metre barrier and thereafter either jumped or fell to the courtyard below sustaining serious injury.

In Spearman Mr Justice Martin Spencer stated that “… whether a person is or is not a trespasser is not solely to be determined by whether the place where they are is or is not an “authorised” place. A person’s state of mind and intention is an important additional factor”. He decided that as the claimant had problems with his mental health, it was foreseeable that he may enter an area not normally entered by patients and that he had had entered the off-limits area as a genuine mistake.

In Mr Ovu’s case, Master McCloud found that the main differences were a) he entered the off-limits area having passed very well signposted limits, and b) that having at that stage become a trespasser merely changing his mind and wishing to re-enter the platform is, not comparable to the case of a person who is unaware they have or are about to exceed their licence or unaware that they will be entering a dangerous area.

Master McCloud therefore held that Mr Ovu was a trespasser at the time of his death.

Was a duty of care owed?

As Mr Ovu had been found to be a trespasser at the time of his death, the duty to non-visitors under the Occupier’s Liability Act 1984 applied. Further, having considered Clerk and Lindsell (the leading textbook on tort law), Master McCloud found that there is nothing to prevent in an appropriate case some duty of care at common law being owed in parallel with the duties to trespassers under the 1984 Act.

However, in this case Mr Ovu slipped and fell on a standard staircase which had no particular defects or unusual dangers of condition. It was much like any other staircase on the Underground whether in public or non-public areas. The harm which befell Mr Ovu was a blow to the head occasioned by the fall, and the risk which he encountered was the ordinary risk of using a staircase, a risk obvious to any adult especially after a few drinks.

Master McCloud found that there was no duty under the 1984 Act as the staircase had no particular defects and the stairs were not dangerous due to their state. She found that there were “no measures that the Defendant could sensibly be expected to have taken which would prevent a fall on an ordinary staircase in good condition, given the obviousness of the risk of a fall on any stairs and the enormous implications if it were to be necessary to – somehow – intervene to protect transport users from that normal everyday risk”.

The claim was therefore unsuccessful.