West Sussex County Council v Pierce

Under the Occupiers’ Liability Act 1957, an occupier must take such care as is reasonable in all the circumstances to ensure that visitors are reasonably safe for the purposes for which they are on the premises. The duty is objective and fact-sensitive. It takes account of the ordinary degree of care expected from the visitor, including that children may be less careful than adults. It is not a duty to make premises hazard-free or to protect children against every accidental injury. A possibility of harm, or the absence of a formal risk assessment, does not by itself establish breach. Ordinary edges, corners and surfaces need not be safeguarded merely because a child might injure himself against them.

A child injured his thumb when he tried to punch his brother and struck the underside of a wall-mounted water fountain at a school run by the defendant local authority. The claimant alleged negligence and breach of statutory duty, contending that the fountain’s underside was sharp and posed a foreseeable risk to children.

Following a trial on liability, District Judge Gamba held the local authority liable and awarded £3,215.16. The local authority appealed, arguing that the judge had failed to identify and apply the common duty of care under section 2 of the Occupiers’ Liability Act 1957. The central issue was whether visitors, including children, were reasonably safe when using the school premises and the fountain.

1. Appeal allowed. The judge below had failed to identify or apply the statutory common duty of care under section 2 of the Occupiers’ Liability Act 1957. He had proceeded on the mistaken basis that a sharp edge and a possibility of an accident made the occupier liable unless it had conducted a properly considered risk assessment.
2. The correct question was whether, as an objective matter, visitors to the school were reasonably safe in using the premises, including the water fountain, for the purposes for which they were invited or permitted to be there. The assessment had to take account of the statutory circumstance that children may be less careful than adults and may lark around.
3. On the evidence, the fountain was reasonably safe. Its underside could not fairly be described as sharp, and it was not possible to cut a finger by pressing on the edge. In any event, the edge did not constitute a danger to children. The possibility that the edge could have been bevelled or padded did not establish a breach.
4. The statutory duty did not require the school to safeguard children against harm in all circumstances or to protect them against every ordinary edge, corner or surface against which they might accidentally injure themselves. A contrary approach would be inconsistent with common sense. The injury was a freak accident for which the local authority was not liable in law.

• Court of Appeal (Civil Division): [2013] EWCA Civ 1230, appeal allowed.
• Brighton County Court: District Judge Gamba, 26 November 2012, judgment for the claimant and award of £3,215.16.