In Lillystone v Bradgate Education Partnership [2025] EWHC 3341 (KB), the claim arose from an incident that occurred in April 2019 on a school’s football pitch. The claimant, then aged 37, was part of a small group of friends playing an informal game of football. The pitch was surrounded on all four sides by a 4.5m high fence with a further fence to the north, which formed the boundary between the school premises and some adjacent playing fields, also owned by the school.
The claimant had kicked the ball over the perimeter fence and into the playing fields. As the gate through the perimeter fence was locked, the claimant climbed over an access gate. While doing so, he sustained a laceration injury to his hand as he dropped on to the other side, due to contact with a ‘burr’ of metal protruding from the top of the gate. He sued the school in the county court, but lost. He appealed to the High Court.
Mrs Justice Hill considered the judgment of the trial judge and the occupiers liability acts 1957 and 1984. The 1957 act was concerned with an occupier’s duty to lawful ‘visitors’, whereas the 1984 act was concerned with an occupier’s duty to people other than visitors, i.e. trespassers.
The trial judge had found that the pitch, including the pitch fence, was not dangerous in its design. The gate and the perimeter fence complied with the appropriate British standards and the school had acted reasonably in the installation and inspection system that it had in place for the gate and fence. The perimeter fence was erected by the school for proper reasons, namely health and safety, and child protection. The burr on top of the gate would not have been visible on reasonable inspection of either the gate or the fence. Balls escaping from the pitch fence to beyond the perimeter fence into the playing fields was something that happened ‘irregularly’ but was a ‘known phenomenon’ to the school. The trial judge also found that the school did not owe the claimant any duty under the 1957 act (although he was a lawful visitor) because he had willingly accepted the risks in question.
The trial judge went on to consider the position under the 1984 act, in case he was wrong in finding that the claimant was not a trespasser. He concluded that the school did not owe the claimant the duty contended for under the 1984 act. There was no danger in the state of the premises and there was no evidence that, in normal use, any burr on the gate was a danger. The risks of climbing the gate were obvious and it was the act of climbing the gate that was the danger and not the gate itself.
The trial judge did accept that there was no adequate system in place for players to retrieve a ball from the playing field. However, the school had good reason to keep the gate locked, given the concerns over public access to the pitch from the playing fields and the need to avoid the risks of security theft and vandalism.
On appeal to the High Court, the claimant had made an application to admit new evidence. Hill J went over the principles for admitting such evidence, which were set out in Ladd v Marshall [1954] 1 WLR 1489, CA. These were (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.
The claimant sought to adduce evidence showing ‘Do not climb’ signs which the school had installed on the outside of the gate/perimeter fence following the claimant’s accident in April 2019. Hill J said that evidence could have been obtained prior to trial and consequently, the first Ladd criterion was not met. The second Ladd criterion was also unmet. The claimant had argued that the school’s decision to put up ‘Do not climb’ signs after his accident reflected a tacit admission that the system in place had been inadequate. Hill J said that it was not necessarily the case. In Cockerill v CXK Ltd [2018] EWHC 1155 (QB), the court had said that there was no necessary logic that post-accident improvements must be taken to be suggestive of pre-accident deficiencies.
However, there was other evidence that could not have been adduced at trial. Following the trial judge’s judgment on 1 March 2024, the school had put up signs on the perimeter fence and provided a telephone number to be called in the case of lost balls. Ladd criteria (1) and (3) were met. However, Hill J did not consider that the Ladd criterion (2) was met. Although the school did not accept the trial judge’s finding that there was no adequate ball retrieval system in place, nonetheless, it would have been irresponsible for them to ignore a judicial finding that its system was inadequate. Hill J did not accept that this evidence would have had an important influence on the trial judge’s decision with respect to the adequacy of the school’s ball retrieval system.
The school had also appealed the trial judge’s finding that there were no adequate measures in place for the retrieval of lost balls. Hill J found that the trial judge was wrong on this point. The judgment in Bolton v Stone [1951] AC 850 at 858 was authority for the proposition that it was not enough that the event in question should be such that it could reasonably be foreseen; but also that injury was reasonably foreseeable. The remote possibility of injury occurring was not sufficient. There was no evidence that the trial judge applied these principles but rather, he focused on simply what football players would do. Hill J said that it could not be reasonable and would place a disproportionate burden on the school, if footballers were not expected to tolerate a break in play, particularly when such a break was caused by their own carelessness in kicking a ball over a 4.5m fence. Hill J said that, therefore, the measures put in place by the school were adequate.
Accordingly, the appeal would be dismissed.
Malcolm Johnson is legal director at Lime Solicitors, London
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