Welcome to the summer edition of the Public Authority Liability Update.

We appreciate that, at this time of year, many of you will be thinking of matters far removed from issues of law and insurance.

However, this has been a particularly busy year in terms of decided cases and legislative developments. For your convenience therefore, we have bundled up the most important developments within this update which we hope you have an opportunity of considering at some point in, hopefully, the quiet month of August.

There is something of a paradox within the judiciary. In the lower courts, the judiciary are increasingly alive to fraudsters. They have also become more robust in upholding our arguments in highways cases. However, in the (higher) appellate courts, the Human Rights Act continues to exercise a controversial influence. Also of note within this update is a Court of Appeal data protection case which significantly increases the risk of compensation being awarded and a failure to clamp down on costs in NIHL claims.

In terms of central government, we have seen helpful legislation insofar as both fraudulent claims and good deeds/heroism are concerned. To counter balance that, the recent cuts announced by the Chancellor are deep and will affect the ability to defend cases generally and the morale of witnesses in particular. We are acutely conscious of the need to support and reassure your witnesses.

Meanwhile, the Jackson reforms have been in operation for over two years. On 13 May 2015, Lord Justice Jackson delivered a paper providing his views on how the new costs regime is working in practice. We have considered in this update how the Court rules may change in the future.

Finally, we would like to thank you for your support this year, all that remains for us to do is wish you a happy and relaxing time for what remains of the summer.

THE SKYLIGHT'S THE LIMIT

Buckett v Staffordshire County Council
QBD (13.4.2015)

Facts

The Claimant sustained severe injuries while trespassing on school grounds on a weekend afternoon with a group of other youths.

The group had spent some time climbing on the low roofs of the school and breaking into and stealing from the tuck shop. Finally, in the early evening, the Claimant accessed the upper roofs and climbed over fencing separating a section of flat roof from a pitched roof.

This section had a number of skylights that were raised above the surface and consisted of panes of unstrengthened glass. The Claimant perched on a diagonal brace and from this jumped onto a skylight and fell through the glass.

The defendant was responsible for the safety of the school and grounds.

Held

The court found that it was foreseeable that youths would trespass on the school grounds and might access the single storey flat roofs. Once on these lower roofs, it was easy to access the upper flat roofs and it was therefore foreseeable that any trespasser would be in proximity to the skylights. It was also foreseeable that a trespasser would climb onto the fencing and gain access to the diagonal brace, which was an obvious standing point.

It was considered that the Claimant had jumped onto the skylight thinking it would hold his weight and not with the intention of breaking it. The skylights were obvious, not defective or in need of repair, and clearly not meant to be walked on.

The Claimant's injuries arose from his own actions of jumping onto the skylight. Accordingly the Defendant did not owe the Claimant any duty to control that activity as a trespasser, even though the Claimant's presence in the vicinity of the skylight ought reasonably to have been foreseen.

In the circumstances what the defendant knew or ought to have known were not the key to establishing liability. The court did not accept that the skylight, in the context of its structure, makeup and location on the roof, was a danger due to the state of the premises or things done or omitted to be done on them. Accordingly no duty was owed to the Claimant as a trespasser and his claim was dismissed.

What can we learn?

  • The case demonstrates the importance of an occupier's system of premises risk assessments and maintenance. As the claimant could not establish any defect in relation to the skylight, no duty of care arose under the Occupiers Liability Acts
  • The Claimant's own action of jumping onto the skylight was the direct cause of his injuries. Even though it was reasonably foreseeable that he could be present near the skylight, the local authority did not owe him any duty to control his activity as a trespasser
  • The case possibly indicates a change in approach of the courts, which may have placed increased importance on the limited resources now available to schools and local authorities

POLICE INVESTIGATIONS A HUMAN RIGHT

Commissioner of Police of the Metropolis v DSD (1)
NBV (2) & Alio Koraou v Chief Constable of Greater
Manchester [2015] EWCA Civ 646

Facts

The Claimants DSD and NBV were two of the victims of a serial rapist. At first instance the Judge found that that there had been failures by the Metropolitan Police in their investigation into the sexual assaults committed against them. These failures constituted a breach of the ECHR Article 3 rights (prohibition on torture, and inhuman or degrading treatment or punishment).

The Police appealed on the basis that the duty to investigate under Article 3 arose only in respect of cases where the state was complicit in the breach of Article 3.

The case of Koraou concerned a man who had been assaulted in a bar. He had provided inconsistent accounts about the identity of his attacker. The Judge at first instance found that although there had been investigative negligence, his claim for an Article 3 breach was dismissed. The Claimant appealed against this finding.

Held

The Court of Appeal found that there was a positive duty under Article 3 to investigate crimes committed by non-state persons in order to ensure that individuals are protected against ill-treatment of the seriousness envisaged by Article 3.

It found that there is a sliding scale, ranging from deliberate torture by state officials at the top, to negligence of non-state officials at the bottom. There is a wider margin of appreciation at the bottom than the top; however, violent crime such as that experienced by DSD and NBV was higher up the scale and a proper criminal investigation was required.

The Court also stated that not every failure to investigate will lead to liability under Article 3, as can be seen in the case of Koraou. Although the first instance judge's question of whether in all the circumstances the police investigation had been reasonable had been a 'loose' approach, his overall treatment of the case had been in line with the scope and nature of the Article 3 duty.

What can we learn?

  • The Court of Appeal found that there was a positive duty under Article 3 to investigate crimes committed by non-state persons in order to ensure that individuals are protected against ill-treatment of the seriousness envisaged by Article 3
  • It found that there is a sliding scale, ranging from deliberate torture by state officials at the top, to negligence of non-state officials at the bottom. There is a wider margin of appreciation at the bottom than the top; however, violent crime such as that experienced by DSD and NBV was higher up the scale and a proper criminal investigation was required
  • The Court also stated that not every failure to investigate will lead to liability under Article 3, as can be seen in the case of Koraou. Although the first instance judge's question of whether in all the circumstances the police investigation had been reasonable had been a 'loose' approach, his overall treatment of the case had been in line with the scope and nature of the Article 3 duty

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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.