Keown v Coventry Healthcare NHS Trust

The judgment is a permission decision, not a final determination of liability under the Occupiers' Liability Act 1984. It identifies substantial points requiring a full appeal: whether an ordinary fire escape may constitute danger due to the state of premises because it may allure children; what an occupier must know about trespassers and their activities; what protection may reasonably be expected; and whether volenti requires more than appreciation and acceptance of risk, particularly for a child. The grounds were inter-connected, so the defendant needed to establish only one to succeed. Permission was granted because the proposed appeal had a real prospect of success.

An 11-year-old trespasser was seriously injured after climbing the outside of a hospital fire escape in 1995. The Nuneaton County Court found the hospital liable for one third of the injury under the Occupiers' Liability Act 1984, attributing two thirds to the claimant's contributory negligence.

The hospital renewed its application for permission to appeal. It challenged findings concerning danger due to the state of the premises, the hospital's knowledge, the protection reasonably expected of it, and the defence of volenti. The central question was whether these grounds raised substantial points of law with a real prospect of success.

1. Permission granted. Lord Justice Auld held that the proposed grounds raised substantial points of law and that the appeal had a real prospect of success. Lord Justice Lloyd agreed. The court therefore granted permission, without deciding the merits of liability.
2. The first proposed ground concerned section 1(1)(a) of the Occupiers' Liability Act 1984. The hospital argued that an ordinary fire escape in satisfactory condition was not dangerous because of the state of the premises. It relied on Tomlinson v Congleton Borough Council and Anr [2004] 1 AC 46 and Donoghue v Folkestone Properties Limited and Anr [2003] QB 1008 for the distinction between a dangerous state of premises and a dangerous activity undertaken on them.
3. The second ground concerned sections 1(3)(a) and (b). The evidence showed awareness that children trespassed near the fire escapes, but not that they climbed them or climbed them from the outside. Whether that knowledge satisfied the statutory requirements was an arguable issue.
4. The third ground concerned section 1(3)(c). Whether barriers or warnings were reasonably expected was not necessarily a purely factual question. It could involve policy, practicality and effectiveness.
5. The fourth ground concerned section 1(6). The hospital argued that appreciation and acceptance of the danger should suffice for volenti. The Recorder had required an express or implied agreement by the child to exempt the hospital from liability. The hospital relied on Ratcliff v McConnell and Ors [1999] 1 WLR 670, and referred to Andrew Scott v Associated British Ports, an unreported decision concerning a claimant aged 14 or 15.
6. The statutory issues were inter-connected. The hospital needed to succeed on only one ground for the appeal to succeed. The appeal was ordered to be listed for one day before two Lord Justices, one with personal injury experience, with provision for a High Court judge if necessary.

1. Court of Appeal (Civil Division): On 23 November 2005, granted the hospital's renewed application for permission to appeal and directed that the appeal be listed.
2. Nuneaton County Court: Mr Recorder Dooley ordered on 13 May 2005 that the hospital was liable for one third of the claimant's injuries under the Occupiers' Liability Act 1984, with two thirds attributed to contributory negligence.