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Kidd v Portsmouth City Council, Court of Appeal, 14 January 2004

22 January 2004
The issues

Occupiers liability – trip – community garden – play area.

The facts

The Claimant was a 10 year-old child who had been playing in a community garden provided by Portsmouth City Council. She tripped on the path and fell onto the garden gate’s open catch, causing an injury which resulted in her losing her sight in her left eye. She sued the Local Authority, alleging breach of statutory duty under Section 2 of the Occupiers Liability Act 1957 and arguing that the substance of which the path had been made (compacted hoggin, a clay and crushed flint mix) was unsuitable for a place where children played, or that it had not been compacted property. Evidence was before the Judge that in childrens play areas the Defendant normally provided soft-surfaced areas or paths made out of tarmac or flagstone and that hoggin was normally laid in large environmental areas mainly used for walking. The Judge found that the Claimant had tripped on a stone in the path but found that the path had been in a satisfactory state. The Judge further found that the community garden was not a playground and whilst it was an enclosed space that was used by children, it was also used by adults and those visiting a nearby care home. The Judge found for the Defendant. The Claimant appealed.

The decision

1. The Judge had concluded that the special standards, which applied to surfaces and playgrounds, did not apply to the community garden merely because children played there.

2. Whilst the tarmac surface might have reduced the risk of children tripping, whether there was a duty on the Defendant to have used tarmac was a matter of fact and degree.

3. Whilst the Defendant had to be aware that children were less careful than adults, there was no basis for arguing in this case that the Judge had imposed the wrong standard of care.

Appeal dismissed.

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