Roselyn Aigibo Ovu (Administratrix of the Estate of Bernard Aziengbe Ovu, Deceased) v London Underground Ltd
| Jurisdiction | England & Wales |
| Judge | Master Victoria McCloud |
| Judgment Date | 13 October 2021 |
| Neutral Citation | [2021] EWHC 2733 (QB) |
| Docket Number | Case No. QB-2020-000184 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 2733 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Master Victoria McCloud
Case No. QB-2020-000184
Counsel:
For the Claimant: Mr Christopher Walker of counsel instructed by Bindmans LLP
For the Defendant: Mr Peter Freeman of counsel instructed by Kennedys.
Materials cited (whether not referred to in judgment):
Authorities:
Braithwaite v South Durham Steel Co. Ltd and Another [1958] 1 WLR 986
British Railways Board v Herrington [1972] AC 877
Revill v Newbery [1996] QB 567
Ratcliff v GR McConnell & E W Jones (CA) [1997] EWCA Civ 2679
Spearman (A Protected Party) v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB)
Tomlinson v Congleton BC [2003] UKHL 47 at 26–27
Keown v Coventry NHS Trust [2006] EWCA Civ 39
Ahanonu v South East London & Kent Bus Company Limited [2008] EWCA Civ 274 (CA) Tindall v Chief Constable of Thames Valley Police & Anor. [2020] EWHC 837 (QB)
Statutes and delegated legislation:
The Occupiers' Liability Act 1957
Textbooks:
Clerk and Lindsell on Torts 23 rd ed ch. 11
Keywords: fatal accident — personal injury — occupiers' liability — negligence — duty of care — trespass — railways — alcohol — intoxication — coroners — Occupiers' Liability Acts 1957, 1984 — Coroners and Justice Act 2009
Accessible language summary (not part of ratio of judgment)
This summary has a Flesch score of above 50 and was written to ensure accessibility of the judgment to readers with average reading ability .
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good condition. The Coroner had made recommendations about improving how the London Underground procedures worked when a person had walked onto the fire escape stairs and only one member of staff was working there. The judge had to decide whether the Deceased was a trespasser and whether London Underground company owed a duty to the Deceased to take steps to ensure his safety on the stairs in these circumstances. The Judge decided that the Deceased was a trespasser when he fell down stairs and died and that the London Underground company did not owe a relevant duty of care to him.
With most things in the Law, cases have a triangular character, such that what is at once personal or private between the parties becomes, in the panopticon of the court, both a legal and a public matter. The relatively abstract nature of the law with which this case deals should not detract from the fact that at the heart of this case is the loss of a life of a young man, whose family is bereaved, after he fell to his death at a London Underground station.
This case relates to the law of Trespass and in part asks what the law means by ‘a trespasser’. Mr Bernard Ovu, aged 35, an IT specialist died near to the Docklands Light Railway platform of Canning Town London Underground Station on 22 January 2017 on a bitterly cold winter night after a fall and a head injury. The condition of the staircase where the Deceased fell is not alleged to have been dangerous nor is it said to have contributed to his fall. The trial took place in open court with Covid-19 protections and I think it can fairly be said that all concerned were satisfied that such was by far the preferable and most efficient mode of trial.
The issues to be tried go to the heart of what if any duty of care is owed by a party, here London Underground Limited, in the circumstances which I will outline here, and whether Mr Ovu was a ‘Trespasser’ at the time of his demise, and indeed what constitutes, even in principle, ‘a Trespasser’.
The case is an important one legally and is of interest to any common lawyer, including this judge because of its potential implications for users of the Underground, for the London Underground Railway itself and perhaps also for parties in analogous situations. I am grateful to both counsel for their exposition of the law and their helpful submissions.
The issues which, by my order of 15 January 2021, I directed to be tried before me were the following:
(a) If it is not admitted by the Claimant, was the Deceased a trespasser at the time of his death?
(b) Was a duty of care owed by the Defendant to the Deceased at the time of his death?; and insofar as necessary
(c) What was the extent of that duty of care?
There was a schedule of agreed facts, and a schedule of a few non-agreed facts but there was no need for me to resolve disputes of fact and no need therefore for oral witnesses.
The accident occurred in a non-public area of Canning Town tube station, and Mr Ovu went through some gates at the end of a platform at about 2.29am (this was a 24 hour station). He had had a rather erratic journey from Canada Water station via Stratford. His exact route or intended route, presumably towards home, is not wholly known but he lived in Kingston-on-Thames and may have therefore been in a general sense trying to travel in that direction. He had set off with a friend, and they travelled to the Rotherhithe area of East London, got into the tube station at Canada Water, where for reasons unknown the friend joined a Waterloo-bound Jubilee line train to the west but Mr Ovu became separated from him and boarded a train heading instead generally east towards Stratford. At Stratford he spent around 50 minutes wandering and went up to an unauthorised area of the station, chatted to individuals and staff and then returned to the trains and headed to Canning Town. I have included a map below 1 of the relevant stations. It was agreed that his behaviour was consistent with being intoxicated. A toxicology report at post mortem found significant blood alcohol ( 176mg/100ml) consistent with drunkenness.
The station plan of the relevant end of Canning Town is below. I had before me still images taken at key points during the evening from several of those cameras showing Mr Ovu in the period leading up to his death. It was not necessary for me to visit the locus. The triangle depicts the point at which Mr Ovu had passed the first substantial (one way) exit gates. The solid square depicts the final one way exit onto the street. The solid arrow and circle depict, respectively the direction of presumed
fall downstairs and the approximate location of the deceased when found, which was at the bottom of the stairs, with the gantry above. Those annotations are my own
The area upon which one focusses in this judgment is the emergency exit route from the station, which is in the form of a series of staircases leading up from the public platforms, to a raised walkway and then down to a final (outward opening) exit onto the street. To enter the emergency exit structure a passenger leaving the Jubilee line must first pass through some clearly marked emergency gates which are simple hinged barriers linked to a silent alarm back to the station control centre which on this night was staffed by just one person who was in charge of the whole station. CCTV records the location, and it appears on screen in real time, however to access the CCTV recording so as to replay it if you are not sure, at the time of this incident it was necessary to contact British Transport Police (the station staff could not simply ‘rewind’ and replay it).
Some way beyond the hinged barrier is a much more substantial wire gate or door which is full height and opens outwards only. If a person exits through that they are then entering the staircase-and-gantry exit structure in the open air. If that is closed behind them then they cannot re-enter the station and their only viable exit route is to proceed towards a second equally substantial push-bar gate, also opening outwards-only, onto the street, which is Silvertown Way.
. The still images from the CCTV showed Mr Ovu's route, timing, and actions in the period leading to his death. It was a freezing cold night, temperatures at times were down to -4 degrees Centigrade. He arrived at Canning town at about 01.56am and passed through the innermost barriers (from the platform heading out towards the emergency exit) at 01.59am, then shortly afterwards he passed through the second gates, entering the location shown with a solid triangle on the plan above (this was the first of the substantial, one way, gates) and headed into the exit structure. He is then seen heading up the fire exit stairs, walking across the gantry in the open air and is visible perhaps ‘lurching’ to one side. In the course of wandering within the exit gantry and staircases he at one point descended as far as the final, street exit gate and he is visible standing beside it at about 02.27 am. However he did not exit, as he could if he had pushed the gate, but turned around and went back up to the gantry. At times it is clear that it is a very cold night and the inquest which resulted found that there were signs of frost on Mr Ovu's clothing.
. Back in the station control room the alarm had sounded to warn the sole member of staff (the customer services manager or “CSM”) that someone had used the exit barrier. While Mr Ovu was wandering within the exit structure the member of staff went down and closed the first of the substantial exit gates, assuming Mr Ovu to have re-joined the platform, so that from that point if anyone was on the other side of it (as in fact was Mr Ovu) they would have one route out, and that was via the final emergency doors onto the street. At that point therefore Mr Ovu was...
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The Duty Of Care Owed To A Trespasser
...thought. It was therefore with interest I noted, the judgment on preliminary issues of liability in Ovu v London Underground Ltd [2021 EWHC 2733 (QB) involving whether Mr Ovu had been a trespasser at a station and owed a duty of The facts in this case are important. Mr Ovu died on 22 Januar......
-
The Duty Of Care Owed To A Trespasser
...thought. It was therefore with interest I noted, the judgment on preliminary issues of liability in Ovu v London Underground Ltd [2021 EWHC 2733 (QB) involving whether Mr Ovu had been a trespasser at a station and owed a duty of The facts in this case are important. Mr Ovu died on 22 Januar......