Occupiers’ Liability in Employer-Provided Accommodation: Off‑Duty Horseplay Does Not Make a Resident a Trespasser

Case: ZZZ v The Ministry of Defence [2026] EWCA Civ 875
Court: England and Wales Court of Appeal (Civil Division)
Date: 8 July 2026
Appeal from: King’s Bench Division, HHJ Simon [2025] EWHC 65 (KB)
Judges: Stuart-Smith LJ (lead), King LJ, Falk LJ

1. Introduction

The claimant, an 18-year-old soldier required to “live-in” at an Army barracks, suffered catastrophic injuries after falling from a second-floor landing over a balustrade that was about 900mm high. The claim was brought against the Ministry of Defence (“MoD”) as both employer and occupier, primarily under the Occupiers’ Liability Act 1957 (“OLA 1957”).

The MoD defended the claim by contending that, because the claimant (and another rifleman) were allegedly engaged in drunken fighting/horseplay at the time of the fall, they were acting outside the scope of any express or implied licence to be on the landing and were therefore not lawful visitors owed the OLA 1957 common duty of care. It also raised illegality (ex turpi causa), volenti, and contributory negligence, and challenged breach and causation.

Key issues

  • Fact: what precisely happened on the landing immediately before the fall, including the degree of force involved.
  • Status under OLA 1957: whether a resident in employer-provided accommodation can become a trespasser “momentarily” by engaging in off-duty misconduct.
  • Illegality: whether ex turpi causa barred the claim on the basis of alleged service/public order offences.
  • Breach and causation: whether the 900mm balustrade was dangerously low and whether a 1100mm balustrade would probably have prevented the fall.
  • Contributory negligence: whether “playfighting” near a stairwell warranted a substantial reduction.

2. Summary of the Judgment

The Court of Appeal dismissed the MoD’s appeal on all grounds and upheld the trial judge’s findings and conclusions:

  • The incident was best characterised as alcohol-exacerbated horseplay (“frolic”), not malicious violence, and involved no “great force”.
  • The claimant remained a lawful visitor in the barracks and was owed the OLA 1957 common duty of care; the duty did not flicker on and off depending on moment-to-moment conduct on a landing within his required accommodation.
  • Ex turpi causa failed; in any event the court stated it would not apply where alleged criminal conduct was only one of multiple causes (McCracken v Smith and others).
  • The MoD breached its duty: the balustrade height posed an unacceptable risk; pre-accident risk assessments were inadequate; current safety standards (including Building Regulations guidance) were relevant to what should have been identified.
  • Causation was made out on the judge’s findings and uncontradicted expert evidence on fall mechanics.
  • Contributory negligence was not established on the evidence; the appellate court declined to substitute its own view.

3. Analysis

3.1 Precedents cited

(a) Appellate restraint on findings of fact

The court grounded its approach in well-known authority on the limited circumstances in which an appellate court should interfere with trial findings:

  • Fage UK Ltd. & anor. v Chobani UK Ltd. & anor. [2014] EWCA Civ 5, [114]: emphasising the trial judge’s advantage in evaluating the “sea of evidence”, and warning against appellate “island hopping”.
  • Prescott v Potamianos [2019] EWCA Civ 932, [76]: on appeals from evaluative decisions, the question is whether there is an identifiable flaw (gap in logic, inconsistency, or failure to consider material factors) undermining the conclusion.

These authorities were decisive in defeating the MoD’s extensive factual challenge (Ground 1). The Court of Appeal accepted there were inconsistencies and alternative narratives, but held the trial judge’s synthesis (“frolic”, no great force) was open to him on the evidence, including the hearsay statements relied on by the MoD itself.

(b) Visitor vs trespasser under OLA 1957; limits of “scope of permission” arguments

The MoD relied heavily on James v White Lion Hotel [2020] PIQR P10 to argue that a visitor may become a trespasser if they do something the occupier would forbid. The Court of Appeal rejected this as an overbroad reading:

  • It highlighted Cotter J’s own concern that OLA status cannot sensibly turn on fine-grained, ephemeral distinctions (illustrated in James v White Lion Hotel by the “alight cigarette” conundrum).
  • It noted Cotter J’s remarks were framed as a necessary factor (“ordinarily the person must be aware…”) rather than a sufficient test, and warned against elevating them into a universal rule.

The court also referred to the appeal decision [2021] EWCA Civ 31, [2021] QB 1153 (quoted at [85]-[87]), where Nicola Davies LJ emphasised the “home from home” character of a hotel room and the need to recognise normal human behaviours (tiredness, relaxation, alcohol) within an occupier’s contemplation—contrasted with the inherently risky recreational activities in:

  • Tomlinson v Congleton BC [2004] 1 AC 460 (activities freely chosen that are inherently risky).

Drawing from these strands, the Court of Appeal held it would be “perverse” to treat the claimant as a trespasser: he was in employer-required accommodation, on a landing forming part of the common parts used to access his room. The court also stressed the practical incoherence of the MoD’s position: it would make OLA duties “ephemeral”, switching off during a brief interaction but switching back on moments later for ordinary use of the same landing.

(c) Illegality (ex turpi causa)

The court held Ground 3 fell away once it rejected the premise that the claimant committed relevant criminal conduct. It added that even if criminal conduct had been one of multiple causes, ex turpi causa would not apply, citing:

3.2 Legal reasoning

(a) Handling of hearsay and missing witnesses

A notable feature is the court’s careful description of the evidential asymmetry: the MoD served hearsay statements from key soldiers but did not call them, and (on the court’s account) did not provide contact details sought so the claimant could summons them. While the Court of Appeal avoided speculation as to why, it identified two consequences:

  • The claimant (who had memory limitations from brain injury and intoxication) was deprived of the ability to test the hearsay through cross-examination.
  • The trial judge had to evaluate untested statements with the limitations of hearsay in mind.

The Court of Appeal nonetheless held there was a sufficient evidential basis for the judge’s findings, and reminded that the MoD’s forensic criticism of inconsistencies within statements it relied upon had limited traction.

(b) OLA 1957 duty: resident soldiers, “scope of licence”, and non-ephemeral visitor status

The heart of the appellate reasoning is a realistic characterisation of permission and premises in employer-provided, mandatory accommodation. The court treated the claimant’s presence on the landing as an ordinary and expected incident of residing there. Even if the MoD could point to service rules on alcohol or fighting, the court rejected a model under which breach of such rules automatically recasts a resident as a trespasser in part of the premises they must use.

The court also expressed scepticism about importing a subjective-awareness requirement (“the person must be aware…”) into the statutory concept of “visitor” (entry/use by express or implied permission), noting the Act does not say so and citing the orthodox formulation (via Clerk and Lindsell on Torts, 24th edn, para 11-15).

(c) Breach: modern standards, non-retrospective regulations, and risk assessment

The court accepted the familiar proposition that Building Regulations are not retrospectively mandatory for existing buildings. But it treated modern standards as highly relevant to what a reasonable occupier/employer should identify as unsafe in ongoing use—especially where the risk is severe (fall from height) and the mitigations are relatively cheap.

The reasoning was supported by multiple converging indicators: expert consensus that current practice would require around 1100mm guarding, internal MoD post-incident documents acknowledging insufficiency, and evidence that alcohol and horseplay were well known features of barracks life that should have been contemplated in risk assessments.

(d) Causation: resisting “strong push” hypotheticals inconsistent with findings

The MoD attempted to rely on a cross-examination concession from the claimant’s expert that, on a premise of a maximal-force push intended to knock someone off their feet, it could not be said that an extra 200mm would probably prevent a fall. The court rejected this because it did not match the judge’s findings (no great force; no concerted attempt to push over; no lifting). On the findings made, the expert evidence supported that a 1100mm balustrade would likely have prevented the claimant toppling over.

(e) Contributory negligence: burden, factual granularity, and appellate caution

The court treated contributory negligence as arguable in the abstract (it expressly said it was not an easy issue), but emphasised:

  • The MoD bore the burden of proof.
  • The claimant’s unreliability on detail (due to injury/intoxication) limited reliance on his concessions.
  • The judge’s findings framed the claimant’s headlock as an attempt to de-escalate an interaction instigated by another soldier.
  • The duration and precise positioning on the landing were not established with sufficient confidence to justify overturning the judge’s “no contributory negligence” conclusion.

3.3 Impact

(a) Occupiers’ liability in “home from home” institutional accommodation

The decision strengthens the proposition that occupiers of accommodation where people live (including employer-mandated residence) must anticipate ordinary, sometimes careless, human behaviour—including alcohol-related lapses—without attempting to avoid OLA 1957 duties by arguing that a resident becomes a trespasser during brief periods of misconduct in common parts.

(b) Limits on “scope of permission” as a defence tactic

The court’s critique of a “momentary trespasser” approach (and its caution in treating James v White Lion Hotel as a general test) is likely to discourage defendants from advancing permission-based arguments that would make visitor status oscillate in fine increments without clear spatial or temporal boundaries.

(c) Risk assessment and legacy infrastructure

For large estates with older buildings (public authorities, defence estates, universities, hospitals), the judgment is a reminder that non-retrospective regulations do not exhaust the duty: modern standards can inform what risks should be identified and what remedial works are reasonably required, especially where the risk is catastrophic and the cost modest.

(d) Litigation conduct: hearsay reliance and witness availability

Although not framed as a sanction, the court’s discussion signals that parties who deploy hearsay but do not facilitate testing of it (particularly where they control access to witnesses) may find appellate sympathy limited when later attacking a fact-finder’s evaluative conclusions.

4. Complex Concepts Simplified

  • OLA 1957 “common duty of care”: an occupier must take reasonable care to keep lawful visitors reasonably safe for the purposes for which they are invited/permitted to be there.
  • Visitor vs trespasser: a visitor is permitted (expressly or impliedly) to be on the premises; a trespasser is not. This case rejects the idea that a resident’s status flips to “trespasser” in a common part merely because they momentarily behave badly.
  • Ex turpi causa (illegality): a doctrine that can bar claims founded on a claimant’s own illegal act. The court indicated it cannot apply where illegality is only one of multiple causes (per McCracken v Smith and others).
  • Volenti: a complete defence where the claimant freely and knowingly accepts the risk. It failed here on the judge’s findings, including the MoD’s own stance that the balustrade was not known to be dangerous.
  • Contributory negligence: reduces (not bars) damages where the claimant failed to take reasonable care for their own safety and that failure contributed to the harm. The defendant must prove it.
  • Appellate restraint: appeal courts rarely overturn factual evaluations unless there is a clear error of approach, logic, or omission of a material factor.

5. Conclusion

ZZZ v The Ministry of Defence [2026] EWCA Civ 875 confirms that, within employer-provided (indeed employer-mandated) accommodation, occupiers cannot readily evade OLA 1957 duties by re-labelling a resident as a trespasser during episodes of off-duty alcohol-related horseplay. The Court of Appeal’s reasoning is strongly practical: visitor status under the OLA 1957 is not meant to be fleeting, and safety duties in “home from home” settings must accommodate foreseeable lapses of care.

The case also underscores that modern safety standards—though not strictly retrospective building requirements—are potent evidence of what risks a reasonable occupier should identify through competent risk assessment, particularly where the hazard is severe (falls from height) and remediation is relatively straightforward.