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Dusting v Devon County Council, Plymouth County Court, 30 November 2004

30 November 2004
The issues

School playground accident – claimant a few weeks short of 5th birthday – Claim Form issued just before expiry of limitation period at age 21 – establishing burden of proof

The facts

The claimant was a pupil at the Defendant’s Primary School in Plymouth. She was a few weeks short of her 5th birthday when she fell in the playground sustaining a nasty laceration to her forehead on 03.03.1988. She alleged that she fell over the edge of the playground onto a “rockery with sharp jagged pointed stones”. She alleged that the school was negligent and/or in breach of Section 2 of the Occupiers’ Liability Act 1957 principally on the basis that the rockery should not have been adjacent to the school playground. She asserted that not only had she been left with a visible scar on her forehead but that the accident had turned her into Îa recluse’ and continued to affect her psychologically.

She brought the case 16 years later – just before her 21st birthday – having read a newspaper article about the rules of limitation applicable to children. There was no intimation of a claim against the school previously.

The Claimant said she could clearly remember the incident well despite her young age. She gave precise evidence as to the size and location of the rocks, which she presumed had once been part of an old wall nearby, even down to remembering their Îrusty’ colouring. The Judge upheld the Defendant’s objections to the Claimant giving evidence at trial, for the first time, about complaints made after the accident. During cross examination she was forced to concede that the version of events initially set out in her letter of claim and claim form differed from that advanced at trial. However, the Claimant sought to explain this by stating that matters had become clearer to her as she had thought about the incident in the run up to the trial.

She was able to obtain a copy of the A & E record held by the hospital. This stated that the Claimant had attended on the day of the accident with a deep laceration to her forehead as a result of striking her head Îon rocks’. The Claimant also relied on a video recording of her 5th birthday party showing the injury to her forehead and, it was claimed, her friends’ refusal to speak to her because of her Îfrightening appearance’.

The Defendant’s enquiries with the school found that no record of the incident could now be found, a matter, which the Claimant criticised. Further, the members of staff who were at the school at the time of the accident had now left. However it was possible for the Defendant to trace and obtain a witness statement from the Claimant’s then classroom teacher. As she had attended to her afterwards, this lady still recalled finding the Claimant in the playground and tending to her whilst waiting for the Claimant’s mother to arrive. Despite teaching at the school for 18 years prior to the accident she did not recall any rocks adjacent to the school playground. The teacher stated that on being called to the playground she found the Claimant on the opposite side to the alleged location of the rockery.

The claim potentially had a high value. The Claimant chose to bring the claim in the Small Claims Track to avoid liability for the Defendant’s costs where, of course, damages for personal injury are limited to £1,000.

The decision

The Claimant had given inconsistent versions of the accident. At one point she said that it was as she was walking back to the classroom that she had tripped over the edge of the pathway onto the rocks. Previously, she had said that the accident occurred when another girl “whirled her around”. The Judge accepted the evidence of the classroom teacher who maintained that; in any event, there were no rockeries close to the playground.

The District Judge found that the Claimant had failed to discharge the burden of proof due to the “mists of time”. He could not be satisfied that the accident occurred as and where alleged. He further held that the claim failed legally as well as factually, citing extensively from Ward v Hertfordshire CC, in which it was held that a traditional flint wall bordering a playground was not dangerous.

Claim dismissed

Comments

An example of the effect of our current Limitation Rules at, potentially, there most damaging to a Defendant.

For Further Information please contact Darren Salter on +44 (0)1392 288322 or email: darrensalter@veitchpenny.co.uk

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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