James Morris and Ailsa Roberts consider some of the risks that property owners face during the school holidays
With the school summer holidays almost upon us, property owners and occupiers will be asking whether their premises are sufficiently safe to avoid any litigation arising out of an alleged breach under the Occupiers Liability Act [1984].
For there to be a liability under the Act a claimant needs to prove the following:
In Young v Kent CC (2005) a 12-year-old boy fell through a brittle roof skylight on a school building. A youth club was using the school premises and the boy had climbed the flue of an extractor fan to the side of the building to get on to the roof.
The Health and Safety Executive report indicated that there had been a problem with access to the roof previously. The judge found in favour of the claimant on the basis that the council was aware of the danger and should have fenced off the area. The judge found that the boy was 50% contributory negligent and said that he would not have been successful in his claim if he were not a child.
In Keown v Coventry Healthcare NHS Trust (2005) an 11-year-old boy climbed a fire escape on a hospital and fell 30ft. The defendant knew that children played in the area, but were not aware that that the fire escapes were used as climbing frames.
The judge found for the claimant at first instance with a reduction of two-thirds for contributory negligence to reflect the claimant's acknowledgement that he realised what he was doing was dangerous and that he should not have been doing it.
On appeal the court found for the defendant on the basis that the fire escape was not inherently dangerous and it was only the chosen activity of the child that made it dangerous.
Lord Longmore confirmed that it is a question of fact and degree whether premises which are dangerous to an adult constitute a danger to a child.
If there is a danger due to the actual state of the premises, giving rise to a potential duty, the content of that duty may vary according to whether the trespasser is a child or an adult. But until that point is reached, the age of the trespasser is irrelevant.
Although the claimant had argued that the fire escape was an allurement to a child, safe premises do not generally become unsafe by virtue of being attractive.
Lord Longmore pointed out that the consequences of imposing restrictive safety regimes can be far reaching and disproportionate to the risk of an occasional injury, protecting the minority to the detriment and cost of the majority.
In Maloney v Torfaen BC (2006) the (adult) claimant, while under the influence of alcohol, strayed from the designated pedestrian path, stumbled over an unfenced retaining wall, and fell down a sloping grass embankment.
The judge at first instance found for the defendant in that although the accident occurred as a result of a danger due to the state of the premises (the retaining wall being unfenced) the defendant did not know or have reasonable grounds to believe that the claimant might come into the vicinity of the danger within the meaning of the Act. The Court of Appeal upheld this decision.
Inherent danger
These three recent decisions have shown a determination by the courts to follow the guidelines set out in Tomlinson v Congleton BC (2002), where an 18-year-old youth suffered spinal injuries when he dived into the
defendant's lake.
The decisions highlight the clear distinction between premises where it is the 'state' of the premises which poses an inherent danger, rather than those where the 'features' of the premises attract dangerous activities to be carried out on them.
The courts have been unwilling to intervene in terms of prescribing risk avoidance measures, and each case will turn on its own facts.
Property owners and occupiers are not required to risk assess or 'child-proof' all premises in order to protect against risky or mischievous behaviour.
But they must have thorough maintenance schedules or records to ensure the premises are not, or become, inherently dangerous and should monitor general activity, such as trends arising out of complaints of children climbing on the roofs.
Where (potential) dangers have been highlighted or incidents occurred, occupiers should consider those incidents and react in a way which is reasonable and balanced in terms of costs to implement preventative measures, social value of the activity and the risk of serious injury.
Occupiers need to be aware of traps and allurements to visitors, particularly with young children. However, the occupier may be able to argue that the children were young enough for it be assumed that they would be supervised - Phipps v Rochester Corporation (1954).
An example might be if an informal shortcut footpath is created down a steep grass bank. If the pathway is clearly worn, this should put the occupier on notice that there is a risk of danger. It is likely that the court will find that, once the occupier was on notice, they must then consider the risk.
If, on consideration, the informal footpath gave rise to an obvious risk of injury to a group of users, the occupier should then consider taking suitable preventative steps, for example, fencing off the embankment, making a formal footpath or erecting warning signs.
When considering these preventative steps, a costs/benefit analysis needs to be done and if no action is to be taken records of the reasoning retained.
It is s1 (5) of the 1984 Act which provides a defence for sufficient warnings and discouragement and volenti under s1 (6) may be relevant. Contributory negligence is often a factor as well.
While the courts' approach is that occupiers have no duty to protect individuals from injury when voluntarily subjecting themselves to an obvious danger and people are expected to take responsibility for their own actions, the claimant will establish liability if the occupier has not taken reasonable and proportionate steps to minimise the risk of injury.
Occupiers need to consider the risks of danger once they are on notice that the features of premises attract dangerous activities to be carried out on them and take reasonable steps if appropriate.
In Tomlinson the erection of signs warning not to swim was sufficient, as the risk of injury was so obvious and the activity so inherently dangerous that the claimant was deemed to have voluntarily subjected himself to the risk. IT
'James Morris is a partner and Ailsa Roberts an associate, in the injury risk group at Beachcroft
