CC v Leeds City Council

Where a risk assessment identifies a foreseeable hazard and requires participants to be warned, failure to give the warning may amount to a breach of duty. For causation, a claimant’s limited or inaccurate perception of a hazard is not equivalent to actual knowledge, strengthened by a warning, that the hazard creates a particular risk. The court must assess whether the warning would probably have altered the claimant’s conduct and prevented the accident. An appellate court may uphold the trial judge’s factual conclusion where the evidence supports it and may determine the issue itself where the parties agree that remittal is unnecessary.

A child was injured during a laser-game attraction operated by Leeds City Council. He tripped over a change in level between inflatable pods, causing the laser gun to strike his teeth. The claim in negligence succeeded before His Honour Judge Saffman, who found breaches in failing to warn participants about the tripping points and failing to make them more visible.

The Council appealed, challenging the standard of care, the treatment of section 1 of the Compensation Act 2006, the evidential basis for the preventative measures, and causation. At the appeal hearing, the Council conceded that the failure-to-warn finding was not susceptible to appeal. The central issue was whether that breach was causative in the but-for sense.

1. The appeal was dismissed. The Council’s concession disposed of the challenge to the finding that failing to warn the claimant about the tripping points constituted a breach of duty.

2. The trial judge had found that the claimant saw the obstacle only dimly and could not accurately assess the danger presented by the difference in levels. The judge’s reference to the failure to warn and other means of drawing attention to the hazard was interpreted disjunctively. It therefore constituted a finding that the failure to warn was a free-standing cause of the accident.

3. A distinction had to be drawn between a dimly perceived and inaccurate awareness of a difference in level, and actual knowledge, reinforced by a warning, that the difference created a tripping hazard requiring care. The claimant’s evidence supported the conclusion that an appropriate warning would probably have affected his conduct.

4. The trial judge had heard the claimant’s evidence and was better placed to assess how he would have responded to the warning. Even if the judge had not made a sufficiently definite finding, the appellate court would have reached the same conclusion on the facts.

5. It was unnecessary to determine the challenge concerning fluorescent strips or similar demarcation because the breach and causation findings concerning the warning were sufficient.

• High Court (Queen’s Bench Division): appeal from the negligence judgment of His Honour Judge Saffman. The appeal was dismissed.