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Pierce v West Sussex County Council, Court of Appeal, 16 October 2013

14 November 2013
The issues

Schools – Occupiers Liability

The facts

The claimant went to St Andrew’s School in Nuthurst, Horsham in West Sussex run by the defendant local authority. In summer 2010 he was nine and a half. On 9th June 2010 a stainless steel wall mounted water fountain was installed on an external wall of the school in a passageway forming part of the playground. Later that day the claimant was playing with his younger brother, George, who was seven and was at the school with his mother for an after school gardening club which their mother helped to run. The boys got into mischief. George sprayed the claimant with water from the water fountain and the claimant tried to punch George who, prudently, positioned himself beneath the water fountain. George dodged the punch. The claimant punched the underside of the water fountain bowl instead lacerating the dorsal aspect of his right thumb and causing associated tendon damage. The claimant was left with a scar but made a full functional recovery. The claimant alleged that the water fountain had a sharp edge on the underside and that there was a real and foreseeable risk of children coming into contact with it; and that had the defendant applied its mind to the risk it would not have installed the fountain or would have taken active steps to round off, cap or tape the sharp edges. The matter was tried in 2012. The district judge gave judgment for the claimant in the sum of £3,215.16. The defendant appealed.

The judge had heard evidence from the school bursar and from Mr Jones who installed the fountain. The fountain installed was widely available and described as suitable for schools. The particular model had been in wide use in public venues and about 8,000 had been installed between 2001 and 2010, mostly in schools and colleges. The managing director of the company that made the fountains who gave evidence said there had never been a report of any accident involving one or any complaint during this period. The district judge concluded that the defendants had not properly considered the risk of harm, relying on internet advertisements promoting the goods of manufacturers instead. He said there was a distinct possibility that children might sky-lark and could trip and cut their heads against the underside of the water fountain. He said that neither Mr Jones nor Miss Harrison, the bursar, had carried out a properly considered risk assessment.

The decision

The judge had not identified or resolved the issues which required determination. He proceeded on the flawed basis that once he had determined that the underside of the water fountain was sharp and that there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted a properly considered risk assessment. In the course of his judgment he did not mention the Occupiers Liability Act or the common duty under Section 2. When the judge referred to the possibility of harm rather than the reasonable foreseeability of harm, he applied the wrong test. The question which had to be addressed was whether as a matter of objective fact visitors to the school were reasonably safe in using the premises including for this purpose the water fountain, bearing in mind that children did not behave like adults and were inclined to lark around.

The answer was yes. The fountain was reasonably safe. The underside was not so sharp as, for example, to make it possible to cut a finger by pressing on it. By no stretch of the imagination could it be said to have constituted a danger to children. It is true that the edge could have been bevelled or padded and that might have avoided the accident. However, that missed the point. The school was not under a duty to safeguard children against harm under all circumstances. The school was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners of surfaces against which children might accidentally injure themselves whilst on the premises.

Appeal allowed

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