Kidd (A Child) v Portsmouth City Council

An occupier’s standard of care in an area used by children is a question of fact and degree. The court must consider all the circumstances, including the foreseeable presence of children and their lesser care, but need not apply standards designed for proper playgrounds merely because children play there. Liability depends on whether the precaution proposed was required in the circumstances. An appellate court should not interfere where the trial judge applied the correct standard and made clear findings of fact.

A child appealed against the dismissal of her personal injury claim arising from a fall on a stone on a hoggin path in an enclosed community garden provided by the defendant council. The council admitted its duty as occupier. The claimant argued that the judge had adopted an impermissibly rigid distinction between a proper playground and an area where children merely happened to play, and should have required tarmac or further compaction. The central issue was the appropriate standard of care for this particular garden.

The Court of Appeal unanimously dismissed the appeal.

1. The trial judge had not treated the case as involving a choice between only two categories: a proper playground requiring special standards, or an ordinary area requiring no particular regard for children. The judgment showed that he had considered the circumstances of this particular garden.
2. The applicable standard was a question of fact and degree. The court had to decide, on all the evidence, whether the council was required to use tarmac rather than hoggin, bearing in mind that children were expected to play in the area and were less careful than adults. The garden’s enclosed and urban character, its use by children, the absence of play equipment, the foreseeable risk of running and tripping, and the cost and appearance of tarmac were relevant considerations.
3. The judge was entitled to accept that the hoggin was suitable for a community garden and that the path had been satisfactorily compacted. He was also entitled to place limited weight on the evidence of the playground-safety expert, who had not inspected the path, and to reject the suggestion that the evidence of the council’s contract supervisor had been misrepresented.
4. Because the correct standard had been applied and the factual findings were clear, the trial judge’s evaluative conclusion was unassailable on appeal. Sympathy for the claimant could not establish legal liability. The appeal was dismissed, with costs in the case.

1. Court of Appeal (Civil Division): On 14 January 2004, the appeal was dismissed: [2004] EWCA Civ 46.
2. Portsmouth County Court: His Honour Judge Iain Hughes QC dismissed the child’s personal injury claim.