Keown v Coventry Healthcare NHS Trust

For the purposes of section 1(1)(a) of the Occupiers’ Liability Act 1984, an occupier’s duty to a trespasser arises only where injury results from a danger due to the state of the premises, or to things done or omitted there. A sound and ordinary feature of premises does not become dangerous merely because a trespasser chooses to use it for an inherently dangerous activity.

A child’s age may matter where lack of capacity prevents recognition of danger. It does not remove the threshold requirement where the child understood the obvious danger and deliberately undertook the activity. The statutory conditions in section 1(3) arise only after that threshold is met.

The claimant, aged 11, climbed the outside framework of a normal external fire escape at hospital premises while showing others how it could be climbed. He fell about 30 feet and suffered serious injuries. He knew that climbing it was dangerous and that he should not do so.

The Recorder in the Nuneaton County Court held that the Trust owed a trespasser’s duty under the Occupiers’ Liability Act 1984, but reduced damages by two-thirds for contributory negligence. The Trust appealed.

The central issue was whether the claimant’s injury arose from a danger due to the state of the premises within section 1(1)(a), rather than from his chosen activity.

1. Appeal allowed. The Recorder’s order was set aside. The claimant did not satisfy the threshold requirement in section 1(1)(a) of the Occupiers’ Liability Act 1984.
2. The fire escape was an ordinary and sound fire escape. Its cross-bracing made it climbable, but did not make it inherently dangerous. The danger arose because the claimant deliberately climbed its outside, knowing both the risk of falling and that he should not do so. His injury was therefore caused by his activity, not by a danger due to the state of the premises.
3. Longmore LJ applied the distinction drawn in Donoghue and Tomlinson: an occupier is not required to protect a trespasser who elects to use an otherwise safe feature of premises for a dangerous activity. An unusual, latent, defective or inherently dangerous feature may lead to a different conclusion.
4. A feature may in an appropriate case be dangerous to a child although not to an adult. That depends on fact and degree, including the child’s capacity to recognise the danger. It did not assist this claimant, who appreciated the danger. Lewison J added that attractiveness to children does not itself convert safe premises into unsafe premises or create a duty by reviving the former doctrine of allurement.
5. The court held that section 1(3) is reached only if the section 1(1)(a) risk exists. Longmore LJ further expressed the obiter view that, even if an unfenced fire escape were treated as the relevant danger, it would not be reasonable under section 1(3)(c) to require the Trust to protect against children climbing such ordinary features.

• Court of Appeal (Civil Division): Allowed the Trust’s appeal in [2006] EWCA Civ 39 and set aside the Recorder’s order.
• Nuneaton County Court: Mr Recorder Dooley held that the Trust was in breach of duty under the Occupiers’ Liability Act 1984, while reducing damages by two-thirds for contributory negligence.