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Keown v Coventry Healthcare NHS Trust, Court of Appeal, 2 February 2006

7 February 2006
The issues

Occupier’s Liability Act – OLA – children – child – Occupier’s Liability Act 1984 – trespasser – what duty owed in respect of premises not dangerous from the point of view of sn adult but dangerous from the point of view of a child – NHS resources

The facts

On 8 October Martyn Keown then aged 11 was playing in the grounds of River House, a property owned and occupied by Coventry Healthcare NHS Trust. At the time of the accident, River House was used as student’s accommodation. It was part of the hospital grounds used by the public as a means of going between the streets on either side. There were trees in the grounds and two fire escapes on the outside of River House. One fire escape had cross bars on its outside and the other did not.

The Trust knew that the grounds of River House were used not only as a means of going between the streets but also as a place where children used to hang around, relax and play. The fire escape with cross bars on its outside was climbable and was an attraction to adventurous children. Martyn Keown had seen other boys climb the fire escape and on 8 October decided to show his sister and his friends how it could be done. He fell from a height of 30 feet fracturing his arm and suffering a significant brain injury which led to loss intellectual functioning and a personality change which allegedly caused him to be subsequently convicted of various sexual offences.

He brought an action for personal injuries against the Trust and succeeded in the County Court. When giving evidence before the court he had said that he appreciated that it was dangerous to climb the underside of the fire escape and that he should not be doing it. The recorder who heard the case concluded that there had existed a danger due to the state of the premises and that the Trust was aware of the circumstances giving rise to the danger and therefore presumably the danger; that the Trust knew that children played in the grounds and that there was a risk of them coming into the area where the fire escape was; and that it was a risk that the Trust might reasonably be expected to offer protection against whether by providing barriers, notices or security guards. The defendant Trust was found liable but the claimant liable contributorarily to the extent of two thirds. The Trust appealed.

The decision
  1. Was a risk of suffering injury by reason of any danger due to the state of the premises? Following the decisions in Donoghue v Folkestone Properties Limited and Tomlinson v Congleton Borough Council, the risk arose out of what the claimant chose to do rather than from any inherent risk in the property. Did it however make a difference that the claimant was a child when the accident occurred? Premises which were not dangerous from the point of view of an adult could be dangerous for a child but it had to be a question of fact and degree. In Tomlinson Lord Hoffman had said that a duty to protect against obvious risk existed only in cases where there was no genuine and informed choice as in the case of some lack of capacity such as the inability of children to recognise danger. So an injury suffered from a toddler crawling into an empty and derelict house could be an injury suffered by reason of a danger due to the state of the premises where an injury suffered by an adult in the same circumstances might not be. But it would not be right to ignore a child’s choice to indulge in a dangerous activity in every case merely because he was a child. The claimant was aged 11 and had appreciated not only that there was a risk of falling but also that what he was doing was dangerous. In these circumstances it could not be said that he did not recognise the danger and it was not arguable that the risk arose out of the state of the premises. The risk arose out of what the claimant chose to do.
  2. If the risk had arisen out of the state of the premises which it did not, the court’s tentative view would be that it was not reasonable to expect a National Health Trust to offer protection from such risks. If it had to offer protection from the risk of falling from a normal fire escape it would presumably have to offer the same protection from falling from drain pipes, balconies, roofs, windows and even trees in the ground. This was going too far, firstly because the resources of a National Health Trust were much more sensibly utilised in the treatment and care of patients together with the proper remuneration of nurses and doctors rather than catering for the contingency that children would climb where they knew they should not and secondly, that if such protection should be afforded it would not be a matter of putting a fence around a fire escape or hiring an extra security guard. The Trust now had built a parameter fence around the entire site and there was only one entrance. People coming in were asked their business and children were turned away. This had happened not merely because of the accident but also because of break ins but it was not unfair to say that the hospital ground was becoming like a fortress. An amenity to the local community had been lost. It was not reasonable to expect that this should happen to avoid the occasional injury.

Appeal allowed.

Mr Justice Lewison added in agreeing with the main judgment of Longmore LJ that the Trial Judge had reached his conclusion in part on the basis of a finding that the fire escape as a whole was attractive to children and was an inducement to climbing. That according to Mr Justice Lewison was a throw back to the old idea that an occupier who permitted an allurement to exist gave an implied licence to children to enter them thus making them invitees. Safe premises did not generally become unsafe because they were attractive.

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