Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 44
The Court of Appeal also noted that it had been
submitted that gaps and inconsistencies in the
claimant’s evidence were “convenient”. That
allegation had not been put to the claimant in crossexamination. If a party intends to suggest that a
claimant is deliberately exploiting gaps in memory
or has fabricated an account, fairness requires the
allegation to be put squarely.
require him to stop thereby became a trespasser.
Stuart-Smith LJ rejected the suggestion that James
v White Lion Hotel [2021] EWCA Civ 31 supported
such a general rule.
The relevant question under the 1957 Act is whether
the person is a visitor, meaning someone who enters
or uses the premises with the occupier’s express or
implied permission. Conduct of which the occupier
might disapprove does not, without more, transform
a lawful visitor into a trespasser.
Early medical histories should be preserved and
analysed carefully, but they should not be treated
as though each were a formal witness statement.
Medical notes may contain abbreviated histories
taken in di昀케cult circumstances from a severely
injured, medicated, confused or cognitively
impaired patient. Their value depends upon the
circumstances in which they were created.
The Ministry’s case also created an insuperable
practical di昀케culty: in relation to precisely what area
had the claimant become a trespasser?
He could not sensibly have become a trespasser in
the barracks as a whole because he was required to
live there. He could not have been a trespasser in his
own room. The argument therefore reduced itself
to the proposition that he became a trespasser on
the landing for the brief period during which he
responded to Graham’s renewed horseplay, only to
become a lawful visitor again when the interaction
ended.
The proper task is to construct the mechanism from
the whole evidential mosaic: eyewitness accounts,
photographs, scene measurements, contemporary
accident documents, engineering evidence and the
medical explanation for impaired memory. The
claimant’s recollection is important, but it need not
carry the whole case.
The Court described that as a startling and
unworkable framework. It would mean that the
Ministry owed no duty concerning the balustrade
during the brief struggle, but would have owed a
duty if the claimant had returned the following
morning and fallen after stumbling. Stuart-Smith LJ
did not accept that the common duty under the 1957
Act was so “ephemeral”.
A lawful visitor does not become a transient
trespasser
The most signi昀椀cant part of the judgment concerns
the claimant’s status under the Occupiers’ Liability
Act 1957.
The Ministry argued that the claimant’s conduct
contravened Army rules or amounted to criminal
conduct, taking him outside his express or implied
licence to use the premises. It alleged potential
o昀昀ences under the Armed Forces Act 2006 and
a昀昀ray under the Public Order Act 1986.
This distinction is of considerable practical
importance. Courts and practitioners should keep
separate the following questions:
1.
Was the claimant a visitor?
The Court rejected both the factual premise and the
proposed legal principle.
2.
Did the occupier take such care as was reasonable
to see that the claimant was reasonably safe in
using the premises for the permitted purpose?
On the 昀椀ndings made at 昀椀rst instance, the claimant
was responding to horseplay initiated by Graham.
The headlock was consistent with the claimant’s
military training in de-escalating potentially
aggressive behaviour. There was no proper basis
for 昀椀nding that he had committed a disciplinary or
criminal o昀昀ence. There had been an investigation,
but no prosecution or disciplinary proceedings
followed.
3.
Did the claimant fail to take reasonable care for
his own safety?
Misconduct may be relevant to breach, causation
or contributory negligence. It does not necessarily
extinguish the underlying duty by retrospectively
converting the claimant into a trespasser.
The relevance of James v White Lion Hotel
The Court’s reliance upon James v White Lion Hotel
is particularly apposite.
More fundamentally, the claimant was on the
second 昀氀oor because his employer required him to
live there. The landing formed part of the common
areas of his accommodation.
In that case, the Court of Appeal recognised that
the common duty of care is owed by a particular
occupier to a particular visitor in a particular factual
setting. A hotel room is a “home from home”. A hotel
guest may be tired, o昀昀 guard, relaxed or a昀昀ected
The principle advanced by the Ministry was far too
broad. It appeared to suggest that a lawful visitor
who engaged in conduct which the occupier would
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