High Court rejects appeal over injury sustained when climbing over perimeter fence of school playing fields

In Lillystone v Bradgate Education Partnership [2025] EWHC 3341 (KB) (19 December 2025), Mrs Justice Hill upheld the judge’s decision that the Respondent owed the Appellant no duty under the 1957 Act, and on the further, alternative, basis that the Appellant was a trespasser but no duty was owed to him under the [Occupiers Liability] 1984 Act; and because even if a duty was owed under either Act, the Respondent had “adequate measures in place for the retrieval of lost balls”.

The Appellant's claim arose out of an incident in April 2019 on the Respondent's premises at Wreake Valley Academy, Leicestershire (the school).

The football pitch at the school is a FIFA-approved, "3G" pitch. The pitch is surrounded on all four sides by a 4.5m high fence.

Abutting the pitch to the north is a further fence (the perimeter fence), which forms the boundary between the Respondent's school premises and some adjacent playing fields, which are owned by the Respondent and are also accessible to the public.

Mrs Justice Hill said: “The Appellant and some friends had been playing football on the Respondent's pitch. The Appellant kicked the ball out of play, over the pitch and perimeter fences, into the playing fields. The gate in the perimeter fence was locked.

“In order to retrieve the ball, the Appellant climbed over the gate into the playing fields. He sustained a laceration injury to his hand as he dropped on to the playing fields side, due to contact with a "burr" of metal protruding from the top of the gate.”

Following the incident, the claimant sought damages for personal injury and losses arising from the injury.

By an order dated 1 March 2024, HHJ Murdoch (the judge) dismissed the Appellant's claim for damages for personal injury and losses against the Respondent, after a two-day trial on liability from 17-18 January 2024.

The judge’s central finding was that the Respondent did not owe the Appellant the occupier's duty under the 1957 Act because the Appellant had “willingly accepted the risks in question”, such that section 2(5) of the Act applied.

Additionally, he found that the Appellant was a “lawful visitor” to the pitch, the adjacent school car park and the adjacent playing fields, albeit that access to the playing field was prevented by the perimeter fence which included a locked gate.

Rejecting the position advanced by the Respondent, the judge concluded that the Appellant was not a trespasser on either side of the fence, nor whilst in the act of climbing the gate. On that basis, the 1957 Act applied.

However, the judge found that there were "obvious risks" to climbing the gate, concluding:

“[…] The reality is that the [Appellant], faced with the inability to retrieve his ball, decided to undertake an obvious risky operation, that is, climb a 2.1-metre-high gate and, in the process of jumping off, having scaled it he caught his hand. With the downward force of the jump, his hand was lacerated on a burr that had caused him no issue when he was ascending the gate. In my view, he had choices. They were perhaps stark and harsh choices, but he did. The choices were to leave the ball, maybe even have to abandon the game, or find somebody with a key to open the gate to allow him or his friends through. Instead, he undertook a dangerous manoeuvre. He chose that latter dangerous manoeuvre.

“In my view, taking into account all those circumstances that I have set out in my judgment, the [Appellant] has failed to establish that the [Respondent] was in breach of section 2 of the [1957 Act].

“In my judgment the [Appellant]'s actions fall squarely within section 2(5), that is a risk willingly accepted by the [Appellant]. He assessed the [g]ate. He thought he could climb it safely. Unfortunately, he was wrong and it was the act of climbing the gate that has resulted in the [Appellant]'s injury not a trap by the [Respondent]".

The Appellant appealed against the Judge's order on five grounds:

• Ground 1: The Judge's decision was irrational and contained inconsistencies of reasoning.
• Ground 2: The Judge erred in not finding that the injuries flowed from the lack of safe means of retrieving the ball.
• Ground 3: The Judge erred in not addressing the Appellant's claim that the Respondent had breached its duties by not conducting an adequate risk assessment.
• Ground 4: The Judge erred in failing to find that the Respondent should have avoided creating a danger.
• Ground 5: The Judge erred in concluding that the risks had been willingly accepted by the Appellant for the purposes of section 2(5) of the 1957 Act.

In response, the Respondent, Bradgate Education Partnership, invited the court to uphold the Judge's decision for the reasons he gave and for further reasons:

• Reason 1: No duty was owed to the Appellant in respect of the risks associated with climbing the gate under either the 1957 or the 1984 Acts because (i) there was no danger due to the state of the premises or to anything done or omitted to be done on them; (ii) the Respondent owed no duty to protect the Appellant against obvious risks; and (iii) the Appellant willingly accepted the risks of injury through climbing the gate in an exercise of his own free choice.
• Reason 2: Further, or alternatively, the Appellant was, contrary to the Judge's finding, a trespasser when he climbed the gate, but that the Respondent owed him no duty under the 1984 Act.
• Reason 3: The Judge had erred in finding that the Respondent did not have in place adequate measures for the retrieval of escaped balls and invited this court to conclude that it did, in fact, have in place such measures.

On ground one, the Appellant contended that the judge's conclusion that he had choices ("to leave the ball, maybe even have to abandon the game, or find somebody with a key to open the gate to allow him or his friends through") was inconsistent with his finding that the Respondent had implemented "no adequate system in place for players to retrieve a ball from the playing field".”

Considering this, Mrs Justice Hill said: “I cannot accept this argument. It was plainly open to the Judge on the evidence to conclude that the Appellant could have chosen to leave the ball […] or to abandon the game rather than climb the gate. The Appellant contended that it was naïve to suppose that the game would be abandoned. The Judge himself recognised that abandoning the game was a "stark and harsh" choice, as was leaving the ball where it was, but these were nevertheless choices open to him.

“The Judge referred to the further option of waiting for a key to be located. This was still a choice for the Appellant, even, as the Judge concluded, waiting for any length of time was something footballers were unlikely to do. […] The existence of these choices means that the Respondent had not created the "trap" alleged.”

She rejected the first ground of appeal, and later in the judgment also rejected grounds 2, 3, 4 and 5.

Turning to the trespasser issue and the 1984 Act (the Respondent’s reason 2), Mrs Justice Hill said: “The Judge concluded that the Appellant was not a trespasser when climbing the gate, because (i) he was not a trespasser whilst using the pitch or when approaching the perimeter fence on the pitch side; (ii) he would not have been a trespasser if exercising a public right of way over the footpath on to the playing fields on the other side of the fence; and (iii) he would not have been a trespasser if he had passed through the gate when it was open.

“However, these reasons failed to take into account the Judge's own finding that the fence and the gate were "self-evidently there to stop people accessing and egressing the school site".”

She continued: “It was clearly to be inferred that the Respondent did not permit anyone to climb the locked gate, and in doing so, the Appellant exceeded the licence afforded to him to play football on the pitch. It was irrelevant whether the Appellant was entitled to use the land on either side of the fence; he did not have permission to climb over the gate when it was locked.”

Mrs Justice Hill therefore concluded that the Judge's conclusion on this issue was wrong and substituted a finding that the Appellant was a trespasser.

On the Respondent's reason 3, Mrs Justice Hill also substituted the Judge's finding that there were “no adequate measures in place for the retrieval of lost balls” with a conclusion that the measures in place were adequate.

She said: “the Judge's conclusion equates to a finding that the measures in place were inadequate because there was no immediate means of retrieving the ball, which enabled the footballers' game to continue without any hiatus whatsoever.

“This standard of adequacy was, in my judgment, incorrect, because it was considered from the unreasonable perspective of footballers who will not tolerate any break in play, even when such break is caused by their own carelessness in kicking a ball over a 4.5m fence. I agree that this approach was disproportionate and placed an unreasonably high burden on the Respondent.”

Dismissing the appeal, Mrs Justice Hill concluded: “The Judge's decision is upheld for the reasons he gave for finding that the Respondent owed the Appellant no duty under the 1957 Act. In addition, I uphold his decision on the further, alternative, basis that the Appellant was a trespasser but no duty was owed to him under the 1984 Act; and because even if a duty was owed under either Act, the Respondent had adequate measures in place for the retrieval of lost balls.

“Further, I uphold the Judge's finding that the cause of the Appellant's injury was his choice to adopt the dangerous manoeuvre of climbing the gate, and then the downward motion as he descended it, rather than any breach of duty by the Respondent.”

Lottie Winson