Gabriel v Kirklees Metropolitan Council

Foreseeability of injury is necessary but insufficient to establish a duty of care for harm caused by third-party wrongdoing. The court must assess the nature and extent of the risk, the defendant’s knowledge or means of knowledge, and the reasonable means of abating it. Those matters may bear both on the existence of a duty and on breach. Where a first-instance judgment contains insufficient findings of fact to resolve those questions, the appellate court may allow the appeal and remit the matter for rehearing. A construction site may present a relevant danger where the combination of accumulated rubble and children playing makes injury to passers-by reasonably foreseeable.

A six-year-old child was injured by a stone or mud thrown by children playing on a council-owned construction site as he walked along an adjoining pavement. The claim was ultimately advanced in negligence, alleging failures to fence the site, prevent children using it as a play area, or make it unattractive to children.

The county court dismissed the claim, finding that the Council owed no duty of care because injury to passers-by was not reasonably foreseeable. The appeal concerned whether that conclusion could stand despite the limited factual findings, including the Council’s knowledge of children entering the site and the condition of the site.

1. Appeal allowed and matter remitted. The judgment could not be upheld because the judge had made insufficient findings of fact to determine whether a duty of care existed, whether it had been breached, and whether any breach caused the injury. The matter was remitted to a different judge.

2. Under the principles discussed in Smith v Littlewoods Limited (1987) 1 AC 241, reasonable foreseeability is not, by itself, sufficient to impose liability for damage caused by third parties. The relevant inquiry includes whether the defendant negligently created or permitted a source of danger, whether third-party interference was reasonably foreseeable, and whether the defendant was bound reasonably to anticipate and guard against the danger.

3. The probability and extent of the risk must be weighed against the difficulty and practicability of eliminating or reducing it. A risk may be so small that a reasonable person could disregard it. The same considerations may bear on both duty and breach, including the defendant’s ability to abate the risk.

4. The judge should have considered: whether it was reasonably foreseeable that children would enter the site; whether they would play there; whether they would throw material found there; and whether that conduct might injure passers-by. Findings were also required concerning the Council’s knowledge or means of knowledge, the nature and extent of the accumulated rubble, and the available precautions.

5. The court did not decide that the Council owed a duty or was in breach. It held only that, in light of the documents indicating awareness of children entering the site and the dangers associated with the site conditions, the claim was at least reasonably arguable. The court also indicated that the circumstances were suitable for compromise. The defendant was ordered to pay the costs of the appeal and below, subject to written submissions within 14 days if challenged.

• Court of Appeal (Civil Division): The appeal from the Bradford County Court/Huddersfield County Court decision of Her Honour Judge Finnerty was allowed. The case was remitted for reconsideration by a different judge.