Jolley v. Sutton London Borough Council

Key legal principles and decision: The House of Lords allowed the appeal and restored the first-instance judgment that the occupier (the council) had breached the common duty of care under the Occupiers' Liability Act 1957 (in particular sections 1 and 2 read with section 2(2) and 2(3)). The court held that it was reasonably foreseeable that children would be attracted to an abandoned boat and might meddle with it, and that the relevant class of risk included the type of accident that occurred when teenage boys propped the boat up and it toppled. The council had power and no valid excuse for not removing the abandoned boat (including statutory power under section 6 of the Refuse Disposal (Amenity) Act 1978), and the Court of Appeal was not entitled to overturn the trial judge's factual finding on foreseeability.

Other material findings: the House rejected the contention that the boys' conduct constituted a novus actus interveniens that broke the chain of causation; the decision engages principles of remoteness and scope of duty as articulated in The Wagon Mound and Hughes v. Lord Advocate, but emphasises that these questions are fact-sensitive, especially where children are concerned. The case was remitted to the Court of Appeal to consider any issues of quantum.

Background and parties: The claimant, Justin Jolley, a schoolboy, suffered severe spinal injuries when an abandoned cabin cruiser on council-owned common ground fell on him while he and a friend were working under it. The defendant was Sutton London Borough Council, the occupier of the land.

Procedural history: At first instance the deputy High Court judge found for the claimant, awarding damages reduced for contributory negligence. The Court of Appeal reversed and entered judgment for the council. The claimant appealed to the House of Lords.

Nature of the claim: Claim in tort for damages against the occupier, primarily based on the Occupiers' Liability Act 1957 (and the 1984 Act was also referenced). Relief sought was damages for personal injury.

Issues framed:

• Whether the council owed a duty under the Occupiers' Liability Act 1957 and whether the injury fell within the scope of that duty (i.e. whether the injury was reasonably foreseeable).
• Whether the particular accident was of a different type from that which a reasonable occupier ought to have foreseen.
• Whether the boys' actions constituted a novus actus interveniens breaking the chain of causation.

Court’s reasoning: The House emphasised that questions of scope and remoteness are fact-sensitive. The trial judge had found that the relevant risk included that teenage boys would meddle with the abandoned boat and might prop it up, producing the collapse that caused the injury; that finding was open on the evidence and should not have been disturbed. The council had conceded negligence in failing to remove the rotten boat and had statutory power to remove it; accordingly no additional burden would have been required to eliminate the wider risk. The House reconciled authority on remoteness (The Wagon Mound) with Hughes v. Lord Advocate and applied them contextually. The court also accepted the concession that, if the primary issue favoured the claimant, novus actus would not assist the council. The appeal was allowed and the matter remitted to the Court of Appeal to consider quantum.

Wider context: The decision underscores that occupiers must anticipate children’s propensity to meddle and that findings of foreseeability in such contexts are highly fact-specific; the remedy of restoring a first-instance factual finding is relatively uncommon but appropriate where the appellate court cannot show the judge’s conclusion was untenable.

Appeal allowed. The House of Lords held that the trial judge was entitled to find that the class of risk created by leaving an abandoned boat on council land included the type of accident that occurred when teenage boys propped up the boat and it toppled; the Court of Appeal was not entitled to overturn that factual finding. The council’s concession that it should have removed the rotten boat and its statutory power to do so reinforced that the wider foreseeable risk fell within the occupier's duty. Novus actus was not established. The case was remitted to the Court of Appeal to consider quantum.

Trial: Deputy High Court Judge (Mr Geoffrey Brice Q.C.) found for claimant and awarded damages [1998] 1 Lloyd's Rep. 433. Court of Appeal: judgment for the council, reversing the trial judge, Jolley v Sutton L.B.C. [1998] 1 WLR 1546. House of Lords: appeal allowed [2000] UKHL 31; remitted to Court of Appeal on quantum.