Barrie v Cardiff County Council

The standard of care owed in a school playground is determined by reasonable foresight of danger in the circumstances, having regard to the age and ordinary characteristics of the children using it. The law does not require a playground to be maintained to the standard of a bowling green. No fixed measurement determines whether a change of level is dangerous. The court must balance relevant factors, including the nature and extent of the obstruction, the users, the extent of use, the duration of the condition and the absence or presence of previous accidents. A 15mm rounded edging, in a playground used by children aged four to seven, did not create a danger which could reasonably have been anticipated.

A six-year-old pupil was injured after tripping over a rounded concrete edging, approximately 15mm above an adjoining tarmac surface in a primary school playground. The recorder found that the edging was too high for children aged four to seven and awarded damages against the local education authority.

The authority appealed, accepting the recorder’s factual findings but challenging the standard of care applied. The Court of Appeal considered whether, in the ordinary course of events, danger could reasonably have been anticipated from continued use of the playground by young children.

1. Appeal allowed. The recorder had imposed an unreasonably high standard. The formal order in the transcript stating that the appeal was dismissed is inconsistent with the reasoning and with the operative order allowing the authority’s appeal.
2. The existence of a common duty of care was undisputed. The standard required is a question of law, while whether that standard has been met is a question of fact, applying the principle stated in Goldman v Hargrave [1967] 1 AC 645 at 663. On appeal, the court was entitled to determine the appropriate legal standard on the recorder’s findings.
3. The relevant question was whether, in the ordinary course of events, danger might reasonably have been anticipated from continued use of the playground by children aged four to seven. The court had to consider the children’s youth and differing propensity to fall, the height and length of the edging, the extent of use, the long duration of the condition and the absence of significant previous accidents.
4. The approach in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR at 293 was adopted, with the necessary substitution of a playground for a highway. Mechanical rules based on the height of a ridge were inappropriate; the assessment depended on reasonable foresight of harm in the particular circumstances.
5. The analogy with Littler v Liverpool Corporation [1968] 2 All ER 343 at 345 was relevant: a playground, like a highway, was not to be judged by the standards of a bowling green. The 15mm change of level did not establish breach of duty.
6. The claimant’s brittle bone condition was not a relevant factor on the agreed issues. The judgment expressed no view on whether such matters might be relevant in another case. The appeal was allowed with costs, subject to the agreed interim payment remaining in place.

• Court of Appeal (Civil Division): Allowed the appeal from the Cardiff County Court judgment of Mr Recorder Philips QC dated 12 July 2000, which had awarded damages to the claimant.