Obvious risks: the beautiful game

Twenty-two years after the House of Lords in Tomlinson v Congleton Borough Council [2003] UKHL 47 warned litigants that a duty to protect against obvious risks only exists in very limited circumstances, there are still some cases that try to push the boundaries of that decision. The recent decision of Mrs Justice Hill in Lillystone v Bradgate Educational Partnership [2025] EWHC 3341 (KB) is one of those, but it ultimately failed.

The claimant was playing football on the defendant’s football pitch. He kicked the ball out of the pitch over both the pitch and the perimeter fences into the playing fields beyond. As the claimant climbed over the locked gate to get his ball back, he injured his hand. The claimant lost his claim, brought under the Occupiers’ Liability Act 1957, at a preliminary issue trial and his appeal was unsuccessful too.

The Judge upheld the trial judge’s decision that the danger arose through the claimant’s decision to climb over the gate, thereby indulging in an activity that had inherent dangers, not through a danger in the gate itself. Although there was a sharp burr on the gate, the gate posed no risk to the normal users of the gate. The defendant did not owe the claimant a duty to prevent him from climbing the gate or warning him about risks that were perfectly obvious. The claimant had choices (although the trial judge did sympathise that having to abandon the game if there was no spare ball was “stark and harsh”) and there was no trap involved.

On appeal the Judge did overturn the trial judge’s finding that in climbing over the gate the claimant was not a trespasser. She found that he was a trespasser when he climbed the gate and no duty was owed to the risk posed by the burr or the gate. The Judge also overturned the trial judge’s decision that there were no adequate measures in place for retrieval of lost balls because waiting from someone to come and unlock the gate was “simply… not what football players would do.” (I have a suspicion that the trial judge, HHJ Murdoch, may have played a bit of 5-aside in the past). She emphasised the need to consider the adequacy of measures from the perspective of the occupier’s duty of care as set out in Bolton v Stone [1951] AC 850 as well as the seriousness of the injury and the social value of the activity and cost of preventative measures.

I have considered cyclist claims which have failed for similar reasons of obvious hazards and risks: https://gatehouselaw.co.uk/e-scooters-cyclists-and-obvious-risks-2/ In a case of mine, a cyclist who collided with a rising arm barrier in Hyde Park also lost his claim because the judge found that the barrier was obvious. Lillystone is a reminder that cases involving obvious risks and hazards are very difficult to win.

Jasmine Murphy is a barrister at Gatehouse Chambers.