Construction of wall – Use of engineering bricks with sharp edges – Wall in area frequented by children – Whether owner of wall failing in duty under Occupier’s Liability Act 1957 – Judge finding owner in breach of duty – Court of Appeal dismissing appeal
The plaintiff, who was born on September 6 1990, was staying at the defendant’s premises, Fun Coast World, Skegness, Lincolnshire, between April 25 and 29 1994 together with other members of his family. On April 27 he suffered a severe laceration to the upper part of his right ear when he fell on to a low brick wall surrounding a restaurant, which formed part of the defendant’s site. The wall was near an open area on which shows for children, such as Punch and Judy shows and magic shows, were performed and at a later date a stage was erected on that area. The plaintiff brought an action based upon breach of the common law duty of care under the Occupier’s Liability Act 1957 contending that the coping course of extremely sharp grade “A” blue engineering bricks with 90% edges used in the construction of the low wall was unsuitable and potentially dangerous in an area where young children were expected to be present. Expert evidence was given referring to British Standard BS 5692 [1982] affecting outdoor play equipment providing, inter alia, that regular inspections should be made for “protrusions, sharp points or edges”. It was said that materials with rounded edge or other than engineering bricks could have been used in the design and construction of the wall, and that in designing the wall it would have been sensible to take into account the fact that it was in a place likely to be frequented by large numbers of children. The judge found in favour of the plaintiff and the defendant appealed.
Held The appeal was dismissed.
1. The duty of care in section 2(2) of the Occupier’s Liability Act, “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonable safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there” was further elaborated in section 2(3)(a) in relation to children, “the occupier must be prepared for children to be less careful than adults”.
2. Although it had been argued that the area by the low wall was not a designated play area, to which the BS standards did not therefore apply (a submission upon which the judge had made no ruling), the defendant had had reason to anticipate the presence of children in the area.
3. Although the case was borderline, the judge had been right to conclude in the plaintiff’s favour for three reasons: (i) because the wall was very low and therefore of greater danger to very young children who were short; (ii) the edge was hard and sharp, so sharp that it had cut straight through the plaintiff’s ear, whereas it could have been made of rubber and it could have had rounded edges; and (iii) the particular presence of children watching shows put on for them, together with the low height of the wall and its sharp edge was a dangerous conjunction and the defendant had failed to take reasonable care.
Christopher Alldis (instructed by Langleys, of Lincoln) appeared for the apellants; Anthony Allston (instructed by Anthony King & Co, of Basildon) appeared for the respondent.
