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Jolley v Sutton London Borough Council, House of Lords, 18 May 2000

26 May 2000
The facts

The Claimant then 14 sustained serious spinal injuries in an accident on the 8th April 1990. In the grounds of the block of flats was a small abandoned cabin cruiser which fell on him as he lay underneath whilst trying to re-paint and repair it. He claimed damages from the Council on the basis of a breach of the Occupiers Liability Act. At first instance Judgement was entered for the Claimant reduced by 25% contrib. The Court of Appeal reversed the Judgment and entered Judgment for the Council.

The boat had been put on a grassed area where children played. It became derelict and rotten.

The trailer was by the side of the boat.

In December 1998 the Council placed a sticker on the boat reading “danger do not touch this vehicle unless you are the owner” and said it would be removed within 7 days unless claimed.

Complaints about the boat were made to the Council by residents.

The Court of Appeal accepted that the boat was an allurement to children and a trap in the sense that it was not immediately apparent that it was in a rotten condition. A combination of these two features made it the duty of the Council to remove the boat which they failed to do and the Court of Appeal accepted in that regard that the Defendants were negligent.

However the attractiveness of the boat to children and its dangerous condition were not established to be part of the causes of the accident in the view of the Court of Appeal. The immediate cause was that the two boys had jacked up and propped the boat so that they could work underneath and in a way that meant the boat was unstable and could and indeed fall on the Claimant.

The issue for the Court of Appeal was whether the accident was of a different type and kind from anything that the Defendant could have foreseen. It was foreseeable that children would play with the boat. However, the Claimant was engaged on an activity “very different from normal play”. The Court of Appeal found that it was not reasonably foreseeable that an accident would occur as a result of boys deciding to work under a propped up boat or that any reasonable similar accident could have been foreseen. “Ironically the state of the boat was so poor that it made it less likely that it would be repairable or that the boys would embark on doing the necessary repairs”.

The decision

The Judge at first instance found the type of accident reasonably foreseeable noting that it was not different from normal play and that play could take the form of mimicking adult behaviour. The House of Lords found that the Judge’s opinion was informed by all the circumstances of the case and was an opinion justified by the circumstances of the case. The Court of Appeal were not entitled to disturb the Judge’s findings.

There was no conflict between Viscount Simmonds Judgment in the Wagon Mound and Lord Reid’s Judgment in Hughes and the Lord Advocate. The law was no more than that the injuries suffered by the appellant though different in degree, should not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. But the scope of the modifiers – the precise manner in which the injury came about and its extent – cannot be definitely answered by the either the Wagon Mound or Hughes and requires “determination in the context of an intense focus on the circumstances of each case”.

Lord Hoffman’s Judgment is the clearer of the two Judgments given:-

(a) The duty is owed pursuant to the OLA 1957;

(b) The Claimant has to show that the injury fell within the scope of the Council’s duty;

(c) In the case of physical injury, the scope of the duty is determined whether or not the injury fell within a description which could be said to be reasonably foreseeable, see The Wagon Mound. If the injury of a description is not reasonably foreseeable it is outside the scope of the duty or too remote.

(d) What must be foreseen is not the precise injury but injury of a given description.

(e) The description is formulated by reference to the nature of the risk which ought to have been foreseen – see Hughes -v- the Lord Advocate. (The risk foreseeable was that the child would be injured by falling in the hole or being burnt by a lamp or by a combination of both – the injury which actually materialised fell within this description, notwithstanding that it involved an unanticipated explosion of the lamp and consequent injuries of unexpected severity). “Reasonably foreseeable” is not a fixed point on the scale of probability. Other factors have to be considered in deciding whether a given probability of injury generates a duty to take steps to eliminate the risk. In The Wagon Mound the privy Council took into account whether avoiding the risk would have involved the Defendant in undue costs or required him to abstain from otherwise reasonable activity. In Bolton -v- Stone the risk that someone might one day be hit by a cricket ball could be avoided only by very large expense on the part of the Cricket Club, but the risk was not such that a reasonable man would take such steps to eliminate it. In this case the Council had conceded that they should have removed the boat. They made the concession on the grounds that there was a risk that children would suffer minor injuries if rotten planking gave way. But the concession showed that if there were a wider risk the Council would have had to incur no additional expense to eliminate it. “They would only have had to do what they admit they should have done anyway”. On the basis of Lord Reid’s statement of the law, the wider risk would fall within the scope of the Council’s duty unless it was different in kind from that which should have been foreseen and either wholly unforeseeable or so remote that it could be brushed aside as far fetched. The risks in this case could not be so described.

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