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Gabriel v Kirklees Metropolitan Council, Court of Appeal, 24 March 2004

1 April 2003
The issues

Children on Local Authority land assaulting passer-by – Local Authority’s liability – failure to fence – failure to prevent land being used as a play area – allurement.

The facts

On the 5th July 1997, Tashan Gabriel aged 6, was seriously injured in his left eye when he was struck in the eye by stone or some mud thrown by children playing on a building site. The building site was owned by Kirklees Metropolitan Council. The Council was undertaking demolition work on the site. At the time of the accident, it was alleged that the whole area was covered in rubble, including mud, bricks, stone and glass. It was surrounded by residential accommodation. The case was dismissed by the Judge at first instance. The Claimant appealed.

The decision

1. The Judgment of the first instance Judge had made very few findings of fact and was fatally flawed. The Judge had made no findings of fact as to the background circumstances. There was no description of the site and the dimensions of the site were not given. There were no findings as to the general condition of the site or as to the nature and extent of debris or rubble accumulated during the excavation work and left unprotected. The extent to which rubble accumulated was relevant to whether or not it represented an allurement to trespassing children to play with. There were no findings as to the Council’s knowledge or means of acquiring knowledge as to the risks that children would trespass on the site, or as to the extent of that risk. There was no reference in the Judgment to documents that were before the Court, such as an undated safety plan, dealing with things to be done to minimise risks, particularly risks to the public and children. These documents tended to show that the Council was aware of the risk of children gaining access to the site and the dangers to the surrounding area resulting from the conditions on the site. The Judge had found that there was no duty of care owing, but before making that finding the Judge should have asked:-

(i) Whether it was reasonably foreseeable that children would go onto the construction site;

(ii) Whether whilst on the construction site it was reasonably foreseeable that children would play there;

(iii) Whether it was reasonably foreseeable that in playing on the site they would thrown whatever came to hand;

(iv) Whether in playing with the material on site, it was reasonably foreseeable that they might cause injury to those passing by on the pavement. The Court of Appeal was unable to substitute its decision because of the absence of relevant findings of fact and the matter would therefore be remitted to a different Trial Judge.
Appeal Allowed.

Comments

With all due respect to Mr Justice Moses who delivered the main Judgment, the incremental questions he poses for the Trial Judge are questions which can only be answered yes and risk falling into the error the Court of Appeal has otherwise castigated, namely the “for want of a nail the kingdom was lost” argument, constructed with the benefit of hindsight.

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