UK: Setting Clear Boundaries: Injury Claim Blaming Defective Fencing Successfully Defended

Last Updated: 24 June 2019
Article by Paul Smith

Clyde & Co are pleased to report the successful defence of a claim after the injured party suffered damage to his left hand when he attempted to vault over a fence surrounding a park.

Background

The Claimant was a 19-year-old man who suffered a serious injury to his left hand when he attempted to vault over a fence surrounding a park.

The fence in question was just over one-metre high and certain sections of it, including where the accident happened, had sharp 'Roman spearhead' tops. The Claimant said he had been unaware of this when he attempted to vault the fence, and that had the spearhead tops not been there, he would not have been injured.

The Claimant pursued a claim in excess of £100,000.

Proceedings

The claim was brought under the Occupiers' Liability Acts 1957 and 1984, and/or in negligence. The Claimant argued that the Defendant, a local authority, was negligent or in breach of duty under OLA 1957 or OLA 1984 for causing, permitting or suffering the material section of the fence to be, to become, or remain a danger and a trap by way of the presence of very sharp spikes.

The Claimant's case was:

  • The Roman spearheads were dangerous and such danger was created by the Defendant, who was aware of the danger or at least had reasonable grounds to believe that the danger existed
  • The Claimant had lawful authority for being in the park but, in any event, the Defendant knew or had reasonable grounds to believe that people, including the Claimant, would be entering and exiting the park and would/could be in the vicinity of the danger at any time
  • The risk of injury associated with the Roman spearheads was, in all the circumstances, one against which the Defendant ought reasonably to have offered some protection
  • The Defendant breached its duty to the Claimant to take such care as was reasonable in all the circumstances to see that he did not suffer injury by reason of the said danger

Our defence was the duty owed under the OLA 1957 is a "common duty of care" (s.2(1)), namely one to "take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there".

The test is not foreseeability of injury but whether activity has been impliedly consented to. The Defendant contended it had not consented to the Claimant choosing to vault a spearhead fence as a legitimate method of exiting the park, when appropriate and adequate exits had been provided.

The Defendant contended that the Occupiers' Liability Act of 1984 is the relevant statute. Under the OLA 1984 the occupier owes a trespasser a duty (by s.1(4) OLA 1984) only to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury by reason of any danger on the premises (by s.1(3) OLA 1984).

Section 6 of OLA 1984 was also relied upon, in that no duty is owed to any person in respect of risks they willingly accept as theirs.

Submissions were made at trial by the Defendant as follows:

  • The Defendant did not accept the condition of the spearhead fence presented a danger
  • There was no reason to support a contention that prior to the accident, the Council knew or had reasonable grounds for believing it to be a danger (given the lack of reported incidents and length of time it had been in situ)
  • There was no reason to believe that the Claimant would attempt to vault the fence, and if it was a danger, it was an obvious risk which did not require guarding against
  • The fence was constructed in such a way as to discourage people from incurring the risk and there were park exits, one only 20 metres or so from the fence, which was also adequately lit. Therefore, not only was the risk in this case obvious, it was willingly accepted by the Claimant (s.6 OLA 1984)
  • The Claimant had been drinking, the medical records indicated the Claimant was heavily intoxicated and therefore he was the author of his own misfortune

Outcome

The two-day case was heard at Brighton County Court. After the Claimant was cross-examined for more than two hours regarding the circumstances leading up to the accident, he decided to discontinue his claim in full.

What can we learn?

  • The decision will be of benefit to local authorities responsible for parks throughout England and Wales, particularly in respect of the issue of historical fencing.
  • It is a good example of a case where examination of the Claimant's hospital records greatly assisted, in highlighting the Claimant's intoxication. Detailed witness evidence was obtained (with photographs exhibited) to illustrate the numerous exits the Claimant could have used rather than vaulting the fence and the lighting in the area.
  • Numerous case law assisted, including Tomlinson v Congleton Borough Council [2003] 1 A.C. 46, Staples v West Dorset DC [1995] 4 WLUK 58 and Harvey v Plymouth City Council [2010] EWCA 860.

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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