Property — Trespasser — Student accommodation in hospital grounds — Children climbing underside of fire escape — Child falling and suffering serious injury — Judge holding landowners in breach of statutory duty to child as trespasser — Landowners responsible for proportion of damages — Whether risk of injury owing to state of premises — Appeal allowed
The appellant trust owned and occupied a building in hospital grounds that, to its knowledge, were used by the public as access to the streets on either side. The building had two fire escapes that led to the third floor. The appellant was aware that children played in the grounds but there was no evidence to suspect that it knew that they climbed the fire escapes.
The respondent was an 11-year old boy who had climbed the underside of one of the fire escapes, fallen 30ft and sustained a significant brain injury. He claimed damages against the appellant for breach of statutory duty under the Occupiers’ Liability Act 1984. The respondent gave evidence that he had appreciated that it was dangerous to climb the underside of the fire escape and that he knew that he should not have been doing it.
The recorder concluded that there had been a “danger due to the state of the premises” within section 1(1)(a) of the Act and that the appellant was in breach of its duty to the respondent as a trespasser under the Act. However, he held that the respondent should bear two-thirds of the responsibility for what had happened. The appellant was accordingly held responsible for one-third of the damages to be assessed. The appellant appealed.
Held: The appeal was allowed.
The respondent had not passed the threshold requirement in section 1(1)(a) of the Act. The fire escape was not in itself dangerous, any danger being due to the respondent’s activity on the premises and not the state of those premises.
The fire escape was a normal fire escape and the premises were required by law to have a means of escape in the event of a fire. A building with a fire escape was no more dangerous than a building with a drainpipe or premises that had potentially dangerous trees. If an adult or child chose to create a danger by climbing, the danger was a result of that person’s activity.
Premises that were not dangerous for an adult might be dangerous for a child, but that was a question of fact and degree. It would not be right to ignore a child’s choice to indulge in a dangerous activity just because he or she was a child. In the present case, it could not be said that the respondent had not recognised the danger or that the risk arose out of the state of the premises.
Martin Porter and Nina Goolamali (instructed by Shakespeares, of Birmingham) appeared for the appellant; Paul Bleasdale QC and William Pusey (instructed by Brindley Twist Tafft & James, of Coventry) appeared for the respondent.
Eileen O’Grady, barrister
