England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NUNEATON COUNTY COURT
Mr Recorder Dooley

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd February 2006

Lord Justice Longmore:

1. River House is a property owned and occupied by Coventry Healthcare NHS Trust ("the Trust"). It used to be nurses' accommodation but, at the time of the accident with which this appeal is concerned, it was used as student accommodation and a day clinic as part of Gulson Hospital in Coventry. It is part of the hospital grounds which were used by the public as a means of going between the streets on either side. There are trees in the grounds and there are two fire escapes on the outside of River House which go as far as the top (third) floor of the building. These fire escapes are of slightly different construction in that one of them had cross-bars on its outside; the other did not.
2. As the Trust well knew, the grounds of River House were used not only as a means of transit between surrounding streets but as a place where children liked to hang around, relax and play. The fire escape with cross-bars on its outside was climbable and thus an attraction to adventurous children. There is no finding that anyone in authority on the part of the Trust actually knew that children climbed the underside of the fire escape but climb it they did. Martyn Keown had seen other boys climb the fire escape in this way and, on 8th October 1995, he decided to show his sister and his friends how this could be done. He was 11 years old, about to be 12 in late November. Sadly he fell from a height of about 30 feet fracturing his arm and suffering a significant brain injury which has led to loss of intellectual functioning and, it is said, a personality change which allegedly caused him to be subsequently convicted of various sexual offences. When his claim against the Trust in respect of his injuries at last came to court in May 2005 before Mr Recorder Dooley, sitting in the Nuneaton County Court, he was produced from prison to give evidence. In that evidence he said he had appreciated it was dangerous to climb the underside of the fire escape and that he knew he should not be doing it.
3. The parties accepted that Mr Keown must be treated as a trespasser while climbing the fire escape. This was apparently on the basis that children playing in the grounds were not lawful visitors but it could also have been because this case must be the closest one will come to in real life to the example of a trespasser given by Scrutton LJ in The Carlgarth [1927] P 93, 110:-

"When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way in which it is used."

4. The Recorder's conclusions in the light of the facts he found were as follows:-

(1) there existed a "danger due to the state of the premises". The Recorder rejected an argument by the Trust that there could not be a danger in the absence of a faulty state of repair and he said that, in coming to this conclusion, he had particularly in mind,

"the height to which a person using the steps could climb and the fact that any fall from virtually any part of the fire escape was likely to carry with it a serious risk of injury" (para. 35 of judgment);

(2) the Trust was aware of the circumstances giving rise to the danger and was thus, presumably, aware of the danger (para. 36);

(3) the Trust knew that children played in the grounds and that there was a risk of their coming into the vicinity of the fire escape (para. 37);

(4) the risk of suffering injury by reason of the danger due to the state of the premises was a risk against which the Trust might reasonably be expected to offer some protection (paras. 38-39). This was because any fall might be from a considerable height and the cost of averting the risk (whether by providing barriers, notices or security guards) was not great;

(5) there was no such express or implied agreement on the part of the claimant to exempt the Trust from liability as to attract the maxim volenti non fit injuria (para. 41).

5. In the light of those findings, the Recorder decided that the Trust was in breach of duty to Mr Keown but he also held that the claimant himself should carry the major proportion of blame for what happened to the extent of being two-thirds responsible. The Trust was accordingly responsible only for one-third of the damages which remain to be assessed. The Trust now appeals.
6. The relevant law governing the liability of occupiers to trespassers is contained in the Occupiers' Liability Act 1984, (hereafter "the 1984 Act"). The Recorder's findings were, of course, prompted by the relevant provisions of the Act which are sections 1(1), 1(3) and 1(4) as follows:-

"(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine—

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

…………………………….

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if—

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned."

7. Risk of suffering injury by reason of any danger due to state of premises; Section 1(1)(a)

Mr Porter for the Trust submitted that the fire escape was not itself dangerous. Any danger was due to the claimant's activity on the premises and was not due to the state of the premises. The fire escape was a normal fire escape and the premises were required by law to have means of egress in case of fire. A building with a fire escape was not dangerous any more than a building with a drain pipe or premises with trees growing on them were dangerous. If an adult or a child chose to create danger by climbing them, any such danger was due to such person's activity not the state of the premises.

8. Mr Bleasdale QC for the claimant submitted that the "danger due to the state of the premises", as specified in the 1984 Act, was danger due to the state of the premises "as found by the trespasser". He explained this by saying that:-

"the fire escape was amenable to being climbed from the outside, with a consequent risk of harm from falling from a height, and constituted an inducement to children habitually playing in the grounds of the hospital."

There was thus a risk of suffering injury by reason of a danger due to the state of the premises. He relied on the recent case of Young v Kent County Council [2005] EWHC 1342 (QB) 14th March 2005 in which the child claimant had climbed the wall of a school building on to the roof and fallen through a skylight. Morison J asked himself whether the state of the premises posed a danger and said:-

". . . . yes, they did. The roof was an inherently dangerous place for a child, particularly having regard to the brittle nature of the skylight. The state of the premises did pose a risk in the sense that children could fall off or be hurt by going through the skylight." (para. 29)

9. On the primary question posed by section 1(1)(a) of the 1984 Act Mr Porter is, in my judgment, right. In Donoghue v Folkestone Properties Ltd [2003] QB 1008, [2003] EWCA Civ 231, where a young adult had dived into Folkestone harbour after midnight in mid-winter and struck his head on an underwater pile, Lord Phillips of Worth Matravers MR said this at paragraph 35 (page 1019):-

"There are some features of land that are not inherently dangerous but which may tempt a person on the land to indulge in an activity which carries a risk of injury. Such activities include cliff-climbing, mountaineering, skiing, and hang-gliding by way of example. It does not seem to me that a person carrying on such an activity can ascribe to the "state of the premises" an injury sustained as a result of a mishap in the course of carrying on the activity—provided of course that the mishap is not caused by an unusual or latent feature of the landscape. I do not consider that the 1984 Act imposes any duty on an occupier to protect a trespasser from making use of a particular feature of the premises in order to carry on an activity simply because that activity carries with it an inherent risk of injury."

He also referred to the Court of Appeal decision in Tomlinson v Congleton Borough Council [2003] 2 WLR 1120, [2002] EWCA Civ 309 in which a young adult had similarly received severe injuries by diving, this time into a stretch of water on open land, when the water only came up to his knees. Lord Phillips said (para. 53) that he could not identify the "state of the premises" which posed a danger which carried with it the risk of the injury suffered by Mr Tomlinson. He added:-

"It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state."

10. When Tomlinson's case went to the House of Lords [2004] 1 AC 46, [2003] UKHL 47 Lord Hoffmann said (para. 27) that in the above sentence the Master of the Rolls had identified a point central to the appeal. He added:-

"It is relevant at a number of points in the analysis of the duties under the 1957 and 1984 Acts. Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises."

11. These authorities would conclude the question in Mr Porter's favour if the claimant was an adult. Does it make any difference that the claimant was a child when the accident occurred?
12. The answer is that premises which are not dangerous from the point of view of an adult can be dangerous for a child but it must be a question of fact and degree. In paragraph 46 of Tomlinson Lord Hoffmann said that a duty to protect against obvious risks exists 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. Thus injury suffered by a toddler crawling into an empty and derelict house could be injury suffered by reason of a danger due to the state of the premises where 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. Mr Keown was 11 at the time he decided to climb the fire escape; the judge's finding was (paras. 15 and 42) that he appreciated not only that there was a risk of falling but also that what he was doing was dangerous and that he should not have been climbing the exterior of the fire escape. In these circumstances it cannot be said that Mr Keown did not recognise the danger and it does not seem to me to be seriously arguable that the risk arose out of the state of the premises which were as one would expect them to be. Rather it arose out of what Mr Keown chose to do.
13. Young v Kent County Council was a more borderline case. Morison J thought it quite probable (para. 19) that the 12½ year old claimant jumped on the skylight, but in the end he concluded that the roof was an inherently dangerous place for a child particularly having regard to the brittle nature of the skylight. If Morrison J was saying that a risk of suffering any injury on any roof must be due to the sate of premises, I would disagree. But I think that he was only saying that a roof with brittle skylights is dangerous premises and that would be less controversial. In the present case there was no suggestion that the fire escape was fragile or had anything wrong with it as a fire escape and I do not think it can be said that the claimant here suffered his injury by reason of any danger due to the state of the premises.
14. I would, therefore, allow the appeal on the basis that the claimant has not passed the threshold requirement contained in section 1(1)(a) of the 1984 Act.
15. Sections 1(3)(a) and (b)

The Recorder did not specifically say what the "danger" was which he had in mind merely saying generally in paragraph 40 that there were no notices, no warnings, no barriers, no fencing and no security guards. If my conclusion so far that the risk of suffering injury was not by reason of any danger due to the state of the premises is wrong, and the risk could be said to have arisen because the fire escape was unguarded (in the sense of there having been a failure to provide security guards patrolling the grounds) or a failure to provide fencing, I would consider that the claimant could bring himself within section 1(3)(a) because the Trust knew that the fire escapes were unguarded and unfenced. The claimant could also bring himself within section 1(3)(b) since, on the findings of the Recorder, the Trust knew that children played in the vicinity of the unguarded or unfenced fire escape.

16. Section 1(3)(c)

Whether the claimant could bring himself within section 1(3)(c) is more doubtful. Was the risk of suffering an injury from falling from the unguarded or unfenced fire escape a risk against which the Trust

"may reasonably be expected to offer [the claimant] some protection"?

17. My tentative (obiter) view is that it would not be reasonable to expect a National Health Service Trust to offer protection from such a risk. 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 (on one view of Morison J's decision in Young), windows and even trees in the grounds. This seems to me to be going too far. I say this for two reasons. First, the resources of a National Health Trust are 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 (one hopes infrequent) that children will climb where they know they should not go. Secondly, if the courts say that such protection should be afforded, it will not just be a matter of putting a fence round a fire-escape or hiring an extra security guard. It is more likely that what will happen will be what, in due course, the judge found (para. 25) happened in this case. The Trust has now built a perimeter fence round the entire site; there is only one entrance; anyone coming in is asked their business; children are turned away. It is right to say that this has occurred not just because of Mr Keown's accident but also because of break-ins which happened subsequently. It is not unfair to say, however, that the hospital ground is becoming a bit like a fortress. The amenity which local people had of passing through the grounds to the neighbouring streets and which children had of harmlessly playing in the grounds has now been lost. It is not reasonable to expect that this should happen to avoid the occasional injury, however sad it is when such injury occurs. Windows and trees have already attracted the attention of the courts in the context of the Occupiers' Liability Act 1957, see Lewis v Six Continents Plc, The Times, 20th January 2006 and Tomlinson v Congleton at paragraph 90 per Lord Scott of Foscote. The duty under the 1984 Act cannot be higher.
18. The Trust also challenged the judge's refusal to apply the defence of volenti non fit injuria. Since that is not an entirely easy question and any observations would be even more obiter than the previous paragraphs, I do not consider it necessary or sensible to address this argument.
19. Conclusion

I would allow this appeal and set aside the judge's order. This will be a great disappointment to the claimant who has suffered a severe and debilitating injury. But the Recorder's decision cannot be justified on the terms of the Occupiers' Liability Act 1984 and no other claim has been or could be made.

Mr Justice Lewison:

20. I have had the advantage of reading in draft the judgment of Lord Justice Longmore, with which I agree. But in deference to the careful judgment of Mr Recorder Dooley, and because we are disagreeing with him, I add some short observations of my own.
21. At about noon on 8th October 1995 Martyn Keown, then aged eleven, began to climb up the outside framework of an external metal fire escape on a building in the grounds of River House, which was part of the Gulson Hospital complex in Coventry. He knew that what he was doing was dangerous, and that he should not do it; but he was showing off to his younger sister and to a friend. Unfortunately he fell off and injured himself badly.
22. The fire escape was, subject to one feature, a perfectly ordinary external fire escape. The particular feature was that its vertical pillars were braced by X-shaped cross struts. These cross struts meant that the external framework could be climbed by children and, on the basis of the trial judge's findings of fact, meant that the fire escape as a whole was attractive to children.
23. The trial judge held that the defendant, as occupier of the fire escape, was liable to Mr Keown under the Occupiers' Liability Act 1984. But he reduced the damages by two thirds because of Mr Keown's contributory negligence in undertaking what the judge described as a foolhardy and rash enterprise.
24. If the trial judge was right, then occupiers of buildings up and down the country will have to "child-proof" their buildings in case children try to climb them.
25. Section 1 (1) of the Occupiers' Liability Act 1984 provides that section 1 determines:

"(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is."

26. As Lord Hoffmann pointed out in Tomlinson v. Congleton Borough Council, [2004] 1 AC 46, [2003] UKHL 47, paragraph 79, a duty can only arise in relation to a risk that falls within section 1(1)(a). It is only if the risk is one that falls within section 1(1)(a) (thus giving rise to the possibility that a duty arises) that one goes on to consider whether any duty in fact arises (section 1(3)) and, if it does, the content of that duty (section 1(4)). In the present case it is not contended that any risk arose because of things done or omitted to be done on the premises. The threshold question, therefore, is whether there was a risk of suffering injury by reason of any danger due to the state of the premises.
27. In Donoghue v. Folkestone Properties Ltd [2003] QB 1008, 1019, [2003] EWCA Civ 231 Lord Phillips of Worth Matravers MR said that the obvious situation in which a duty is likely to arise is where the occupier knows that a trespasser may come across a danger that is latent. In such a case a trespasser may be exposed to the risk of injury without knowing it. But where a feature of the premises is not inherently dangerous, the 1984 Act does not impose upon an occupier a duty to prevent a trespasser from making use of that feature for an activity, where it is the activity itself that causes the danger.
28. The threshold question is not whether there is a risk of suffering injury by reason of the state of the premises. It is whether there is a risk of injury by reason of any danger due to the state of the premises. Thus in order for the threshold question to be answered in the affirmative it must be shown that the premises were inherently dangerous.
29. In the present case there was nothing inherently dangerous about the fire escape. There was no physical defect in it: no element of disrepair or structural deficiency. Nor was there any hidden danger. The only danger arose from the activity of Mr Keown in choosing to climb up the outside, knowing that it was dangerous to do so.
30. Mr Bleasdale QC referred us to the decision of Morison J in Young v. Kent County Council [2005] EWHC 1342 (QB) in which the claimant, aged twelve, climbed onto a flat roof to retrieve a football. He was injured when he deliberately jumped on a skylight in the roof, and fell through it. The judge held that a flat roof containing a brittle skylight was inherently dangerous for a child in the sense that children could fall off it or be hurt by going through the skylight. I would respectfully disagree that a flat roof is dangerous merely because a trespasser (even a child) could fall off it; although the actual decision can perhaps be supported on the ground that the skylight was brittle. But had Mr Porter's point been argued in Young, it may well be that the judge would have concluded that the only danger was attributable to the claimant's own activity in jumping on the skylight, rather than any inherent danger in the premises themselves.
31. It is possible to conceive of cases in which the state of premises is dangerous to children but not adults. My Lord has given the example of a toddler crawling into a derelict house. In his skeleton argument Mr Porter gave the examples of banisters or railings so spaced that a child's head might be trapped between them; or a lattice walkway which might trap a child's foot. But, for my part, I agree with him that the age of the trespasser will not usually affect the question whether the danger is or is not a danger attributable to the state of the premises. If there is a danger attributable to the state of the premises, thus giving rise to a potential duty, the content of the duty may vary according to whether the trespasser is a child or an adult. But until that point is reached, then in the general run of cases, the age of the trespasser is not relevant.
32. The trial judge reached his conclusion in part on the basis of his finding that the fire escape as a whole was attractive to children. Mr Bleasdale also submitted that the fire escape was an inducement to children to climb it. But that, in my judgment, is a throw-back to the old idea that an occupier who permitted an allurement to exist on his premises gave an implied licence to children to enter them, thus making them invitees. As Mr Porter submitted, safe premises do not generally become unsafe because they are attractive.
33. Accordingly, in my judgment, the threshold question must be answered in the negative. There was no risk of suffering injury by reason of any danger due to the state of the premises.
34. On the remaining questions, I agree with Lord Justice Longmore and have nothing to add.
35. I, too, would allow the appeal.

Lord Justice Mummery:

36. I agree with both judgments and would allow the appeal.