UK: BLG Local Authority Newsletter - A Cautionary Tale For Children

Last Updated: 10 July 2008
Article by Katrina McAteer

Gabbott v Bicester Town Council serves as a timely reminder that the reasonableness of any system of inspection of an area to which the public has access by the occupying local authority should be judged against the degree of risk of injury involved. So, if the risk is low, then there may need to be no proactive system in place to detect the risk and protect the public.

It was alleged that the defendant town council had been in breach of its duty of care under the Occupier's Liability Act 1957 (the "Act") by permitting glass to be present in a recreational parkland area. The claimant minor's lawyers alleged that he had been playing in a section of the park, near to the children's play area, when he sustained serious injury to his wrist as a result of falling onto broken glass.

It was the claimant's case that there had been numerous and specific complaints about glass in, or near to, the area where the accident occurred. It was also said that the inspection system was inadequate given that the defendant knew that children played in the area where the accident occurred.

The defendant's system of inspection was primarily a reactive one for the specific accident location (the recreational grass area of the park) but there was a proactive system of weekly inspections for the children's play area which was located near to the accident location.

Submissions

The claimant placed great emphasis on the fact that the Act specifically states that an occupier must be prepared for children to be less careful than adults for the obvious reason that something which would not be a danger to an adult may very well be one to a child, and a warning sufficient for the former may be inadequate for the latter.

On behalf of the defendant, the primary submissions to the court were that there had been no complaints about glass at the specific accident location (albeit that there had been complaints about glass in other areas of the park) and that the defendant's employees had not noticed a particular problem with glass and that, therefore, the evidence suggested that the risk of injury (from glass) was low.

It was further submitted on behalf of the defendant that the responsibility for the safety of children must rest primarily on parents. It is their duty to see that their children are not allowed to wander about by themselves, or at the least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe for them to go to. In cross examination, it had been established that if the parents had thought that the park was unsafe they would not have permitted their son to be there.

Judgment

In giving judgment, the court emphasised that the park was large and that the claimant's evidence as to complaints about glass in the park was not clear as to whether or not those complaints related specifically to the accident location.

It was held that the weekly inspections of the children's play area were likely to have covered the area of the accident. One of the defendant's witnesses had said that he would have probably checked the accident location in his weekly inspection (albeit that this task was not within his specific remit and that he did not have any written records to evidence his assertion). But in any event, the court accepted the submissions of the defendant that it is not possible to implement a system in a large park so that the park was entirely free of glass or rubbish. The duty under the Act is not one of strict liability. The duty is to take reasonable care for the safety of visitors and the scope of that duty must be commensurate with the degree of risk. In this case, the court accepted that the risk of injury was low, so a proactive system of inspection was not a decisive factor in any event.

Conclusions

In determining whether what was done or not done by the occupier was in fact reasonable, and whether in the particular circumstances of the case the visitor was reasonably safe, the court should consider all the circumstances, such as how obvious the danger was, warnings, lighting, the age of the visitor, the purpose of his visit, the conduct to be expected of him, and the state of knowledge of the occupier. The difficulty and expense of removing the danger is also a relevant factor.

What was particularly reassuring for defendants is that the court was persuaded that it would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those of persons who happen to have accessible bits of land. This chimes with the principles of personal responsibility discussed in the lead article in this newsletter relating to summer holiday hazards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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