Jolley v Sutton London Borough Council

An occupier’s liability for physical injury extends to injury within a reasonably foreseeable description of risk. The precise mechanism and severity of the injury need not have been foreseeable. The risk must be described by reference to its essential characteristics rather than at an artificially narrow level.

Reasonable foreseeability is not a fixed probability threshold. The likelihood and nature of injury must be weighed against the cost, difficulty and utility of precautions. Where an occupier must remove a danger in any event, a relatively small risk arising from the same danger may fall within the duty because its elimination imposes no additional burden.

When children are concerned, the assessment must allow for their lesser care, ingenuity and tendency to imitate adult activities.

A 14-year-old boy suffered paraplegia when an abandoned cabin cruiser fell on him while he and another boy were repairing it. The defendant council owned and occupied the grassed area where the derelict boat had remained for several years.

A Deputy High Court Judge gave judgment for the claimant, subject to a 25 per cent reduction for contributory negligence, and awarded £621,710 plus interest: Jolley v London Borough of Sutton [1998] 1 Lloyd's Rep 433. The Court of Appeal unanimously reversed that decision and entered judgment for the council: Jolley v Sutton LBC [1998] 1 WLR 1546.

The central issue was whether the reasonably foreseeable risk was confined to children being injured by rotten planking, or extended to physical injury caused by children meddling with, moving or working beneath the abandoned boat.

1. Disposition. The House unanimously allowed the appeal, restored the Deputy High Court Judge’s determination of liability and remitted the case to the Court of Appeal for consideration of any issue concerning quantum which that court was prepared to entertain.

2. Lord Steyn. Lord Steyn’s reasons were agreed by Lord Browne-Wilkinson and Lord Mackay of Clashfern. The trial judge had found that the foreseeable type of accident included teenage boys raising and propping up the boat. That finding was distinct from the risk that younger children might be hurt by rotten planking. The judge was entitled to regard teenage play as including the imitation of adult behaviour. His assessment was an informed opinion based on all the circumstances, and the Court of Appeal had no sufficient basis for disturbing it.

3. Lord Hoffmann. Lord Hoffmann’s reasons were agreed by Lord Mackay and Lord Hobhouse. Under the Occupiers' Liability Act 1957, the council owed the claimant, as a permitted visitor, the common duty of care. The scope of that duty in a physical injury case depended on whether the injury fell within a reasonably foreseeable description. Foreseeability concerns the genus of injury, defined by the nature of the risk, rather than its precise mechanism or extent.

   Hughes v Lord Advocate [1963] AC 837 was consistent with The Wagon Mound (No 1) [1961] AC 388. The former concerned whether an unexpectedly produced and unusually severe injury remained within a foreseeable description; the latter rejected liability for damage belonging to an unforeseeable description.

4. Reasonable foreseeability was not a fixed probability threshold. Following the risk calculus in The Wagon Mound (No 2) [1967] 2 AC 617, the probability and nature of injury had to be weighed against the burden of avoiding it and any valid reason for tolerating the risk. The council admitted that it should have removed the boat because of the rotten planking. Recognising the wider risk therefore imposed no additional precaution or expense.

   The abandoned and rotten condition of the boat also signalled that it was available for whatever use children’s imagination might suggest. The risk of physical injury from meddling with it was neither wholly unforeseeable nor so remote that it could be dismissed as far-fetched. The claimant’s injury fell within that description.

5. The council rightly conceded that, once foreseeability was established, the boys’ conduct did not constitute a new intervening act. Lord Steyn and Lord Hoffmann also cautioned that factual comparisons with other foreseeability cases are ordinarily sterile. Precedent should identify the applicable legal rule, while the rule must be applied through close attention to the circumstances of the particular case.

1. House of Lords: Unanimously allowed the claimant’s appeal, restored the trial judge’s determination of liability and remitted any outstanding issue concerning quantum to the Court of Appeal.
2. Court of Appeal: Unanimously allowed the council’s appeal, reversed the trial judge on liability and entered judgment for the council: Jolley v Sutton LBC [1998] 1 WLR 1546.
3. High Court: A Deputy High Court Judge gave judgment for the claimant, reduced the damages by 25 per cent for contributory negligence and awarded £621,710 plus interest: Jolley v London Borough of Sutton [1998] 1 Lloyd's Rep 433.