Jolley v Sutton London Borough Council

An occupier’s liability for injury to a child depends on whether the accident was of a type or kind that was reasonably foreseeable. The law does not require prediction of the precise mechanism or sequence of events; an unexpected development may be only a variant of a foreseeable accident. But the fact that children are likely to meddle with an attractive or dangerous object does not make every later activity foreseeable. Where injury results from a materially different and unusually complex activity, the accident may fall outside the risk created by the negligence. In that event, breach does not establish causation or liability.

The claimant, a 14-year-old boy, was catastrophically injured when an abandoned boat on Council amenity land, which he and a friend had jacked up and propped while attempting repairs, fell on him. The Council admitted negligence in leaving the boat but disputed foreseeability and causation.

A deputy High Court judge awarded £621,710 in damages, reduced by 25 per cent for contributory negligence, holding that the accident was foreseeable and that the boys’ conduct was not a novus actus. The Council appealed. The claimant cross-appealed on quantum. The central issue was whether this accident fell within the foreseeable risk created by the Council’s breach.

The Court of Appeal allowed the Council’s appeal, entered judgment for the Council and dismissed the claimant’s cross-appeal on quantum. Lord Woolf MR gave the leading judgment. Roch LJ and Judge LJ agreed with the result and expressed their conclusions in separate reasoning. Costs were ordered here and below.

1. The Council owed the claimant the common duty under section 2 of the Occupiers Liability Act 1957. It was negligent in leaving an attractive, derelict and potentially dangerous boat accessible to children. However, the boat’s attractiveness and rotten condition were not shown to cause this accident. The immediate cause was the boys’ decision to jack up and inadequately support the boat and work beneath it.
2. Foreseeability concerns the type or kind of accident, rather than requiring the precise mechanism or concatenation of events to be predicted. The approach in Hughes v Lord Advocate [1963] AC 837 showed that an unexpected development may be merely a variant of a foreseeable accident. Nevertheless, allowance for children’s unpredictability is not unlimited. Ordinary meddling, climbing or playing with the boat was foreseeable, but moving and propping it to enable work beneath it was not. That activity created an accident of a different type and kind.
3. The court preferred to resolve causation through foreseeability rather than by deciding that the boys’ conduct was a novus actus or by implying a limitation on the purposes for which the claimant was permitted to be present. Judge LJ observed that liability could have followed for an injury caused while a child was playing on the boat and its rotten planking gave way. The present accident, however, was outside the risk created by the breach.
4. The court recognised the trial judge’s advantage in assessing the evidence, although the appeal was a rehearing. If the Council had been liable, the 25 per cent apportionment for contributory negligence would have stood. Liability having failed, the cross-appeal on quantum was dismissed.

• Court of Appeal (Civil Division): On appeal, [1998] EWCA Civ 1049, the court allowed the Council’s appeal, dismissed the cross-appeal on quantum and ordered costs here and below.
• Queen’s Bench Division: Mr Recorder Geoffrey Brice QC, sitting as a Deputy High Court Judge, awarded £621,710 damages on 14 May 1997, subject to a 25 per cent reduction for contributory negligence.