Law report: Council was not liable for boys' injuries

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25 June 1998

Jolley v London Borough of Sutton

Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Roch and Lord Justice Judge) 19 June 1998

NOTWITHSTANDING THAT it had been negligent in allowing an abandoned boat which was in a dangerous condition to remain on its land, a local council was not liable for injuries suffered by a 14-year-old boy who had jacked the boat up in an attempt to repair it.

The Court of Appeal allowed the appeal of the London Borough of Sutton against a finding of liability for injuries suffered by the plaintiff, and an award in his favour of pounds 621,710 damages.

The appellant council owned a piece of "amenity land" on which a boat had been left lying for at least two years. The plaintiff, a 14-year-old schoolboy, and a friend saw the boat and decided to repair it. They worked on the boat, in the evenings and at weekends, for about six weeks. Whilst they were working underneath the boat, which they had jacked up using a car jack and some wood, it started to rock and landed on the plaintiff's back, causing him severe spinal injuries. As a result he was a paraplegic with severe complications, and was confined to a wheelchair.

The plaintiff issued proceedings against the council, claiming that it had been in breach of the common duty of care as defined in s 2 of the Occupiers Liability Act 1957. The judge concluded that the boat was something which it could be anticipated would be an attraction to children, and that it was reasonably foreseeable that children, including those of the age of the plaintiff, would meddle with the boat and be at risk of some physical injury. He found that the council ought to have removed and disposed of the boat, not merely because it was an eyesore, but because it was a trap.

The council appealed, contending that the accident in which the plaintiff had sustained his injuries was one which the council could not reasonably have foreseen and that, notwithstanding their negligence in not removing the boat prior to the accident, that negligence was not causative of the plaintiff's loss.

Michael de Navarro QC and Howard Palmer (Watmores) for the council; Brian Langstaff QC and Paul Spencer (Rowley Ashworth, Wimbledon) for the plaintiff.

Lord Woolf MR said that there was no case of which counsel on either side were aware where want of care on the part of a defendant had been established, but a plaintiff, who was a child, had failed to succeed because the circumstances of the accident were not foreseeable. To that extent, if the present appeal succeeded, the result would be novel.

Notwithstanding that the boat was both an allurement and a trap, and that the council had been negligent in failing to remove it, the attractiveness of the boat to children and its dangerous condition had not been established to be part of the causes of the accident. The immediate cause of the accident had been the actions of the two boys in jacking the boat up so that they could work underneath it in such a way that it had become unstable and had fallen on the plaintiff.

The question which had to be asked was whether the accident which had caused the plaintiff's injuries was of a different type and kind from anything that the council could have foreseen, and, in answering that question, it was necessary to have well in mind that the council should have appreciated that it was difficult to anticipate what children would do when playing with a boat such as that in the present case. It was important not only to consider the precise accident which had occurred but the class of accident. However, what the plaintiff had been engaged on was an activity very different from normal play.

Even making full allowance for the unpredictability of children's behaviour, it was not reasonably foreseeable that an accident could have occurred as a result of the boys' activities, nor could any reasonably similar accident have been foreseen. The court's decision was a tragedy for the plaintiff and those who cared for him. The court very much regretted that. None the less the appeal had to be allowed.

Kate O'Hanlon, Barrister