PI Brief Update

High Court Refuses to Play Ball: Footballs, Fences and Foreseeability - Georgina Pressdee, Temple Garden Chambers

16/02/26. This article examines the recent decision of the High Court to dismiss the Claimant’s appeal in Adam Lillystone v Bradgate Education Partnership [2025] EWHC 3341.

The Claim

The Claimant had sustained an injury to his hand on the Defendant’s premises – a football pitch surrounded by a 4.5m fence with a further 2-2.5m perimeter fence. After kicking a ball out of bounds, he climbed the locked perimeter gate to retrieve it and lacerated his hand on a metal burr at the top. He sought damages under the Occupiers’ Liability Acts 1957 and 1984.

The Claim was dismissed following a two‑day trial on liability. Whilst the Claimant was a lawful visitor, no duty was owed under either Act because he had accepted the risk, the premises were not dangerous, and the Defendant had no reasonable grounds to believe the danger existed.

Facts

HHJ Murdoch made the following findings of fact at first instance.

1. It had taken the Claimant 30–60 seconds from reaching the locked gate to assess the risks and climb over.
2. The burr which caused the injury was not known to either party and would not have been visible on reasonable inspection.
3. The fence was not dangerous and had been erected and locked for proper reasons.
4. The Defendant had no adequate system in place for ball retrieval, despite this being a known (although irregular) phenomenon, because it was not realistic for players to telephone and wait.

Grounds of Appeal

The Claimant appealed on the basis that HHJ Murdoch had erred –

1. By reaching a decision that was irrational and inconsistent.
2. In not finding that injuries flowed from the lack of safe means of retrieving the ball.
3. In not addressing the claim that the Defendant failed to conduct an adequate risk assessment.
4. In failing to find that the Defendant should have avoided creating the danger.
5. In concluding that the risks had been willingly accepted by the Clamant.

The Defendant invited the Court to uphold HHJ Murdoch’s decision but cross appealed on the basis that –

1. The Claimant was a trespasser when he climbed the gate.
2. The Defendant did have in place adequate measures for retrieving escaped balls.

Judgment: Appeal Dismissed

HHJ Murdoch’s finding that no duty was owed was upheld. The inherent danger lay in the act of climbing the gate, not in the gate itself, and it would be circular to impose a duty to prevent climbing by virtue of the failure to prevent climbing. In any event, the Claimant had a choice and the risks were obvious and had been willingly accepted. The lack of knowledge of the burr did not alter this conclusion; the Claimant had been wrong to assess the gate as climbable and climbing involved risks other than falling. Grounds 2 and 3 were dismissed on the basis that –

1. A risk assessment or signage would not have stopped the Claimant from climbing the fence; and
2. Causation was not the basis on which the Claim was originally dismissed.

HHJ Murdoch’s findings were, however, reversed in respect of both of the Defendant’s cross appeals. The fact that the Claimant’s actions were foreseeable did not mean that he had an implied licence to climb. No duty was owed under the 1984 act because the danger presented by the burr was not one the Defendant had reasonable grounds to believe existed or could reasonably be expected to offer protection against. Finally, there were adequate means of retrieving a ball – they simply required patience.

Comment

This judgment may instinctively feel correct – players prepared to a climb a 2-2.5 metre fence instead of waiting for the gate to be unlocked can expect injury. However, the conclusions are somewhat difficult to reconcile. On the one hand, the Defendant owed no duty under the 1984 Act because they had no reasonable grounds to believe the danger existed – the burr would not have been visible on reasonable inspection. On the other, the Claimant accepted the risk of that danger and the risk from the burr was obvious.

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