Fountain of common sense

The Court of Appeal's rejection of a personal injury claim brought by a young boy against a local authority caught the media and public's imagination. Robin Churchill explains why.

In West Sussex County Council v Pierce [2013] EWCA Civ 1230 West Sussex County Council was the defendant in a claim for personal injury damages brought by a young boy. At the time of the accident he was nine-and-a-half years old, and a pupil at a school in Nuthurst, Horsham. The council was an occupier of the school premises for the purposes of the Occupiers’ Liability Act 1957 (the Act) and the boy was a lawful visitor there.

On  June 9, 2010, a stainless steel wall mounted water fountain was installed on an external wall of the school’s playground. Later on that day, the boy and his younger brother were with their mother for an after-school club. The boys started larking about near the water fountain. The younger brother sprayed the older brother with water. The older brother became angry and tried to punch his sibling, who was by then underneath the water fountain.

The older brother missed him, and punched the underside of the water fountain bowl instead, cutting his right thumb and he also suffered tendon damage.

Thankfully, the boy made a full recovery, though he was left with a hockey stick shaped scar of about 2.7 cm on his thumb.

Court proceedings were issued in 2012. The particulars of claim alleged that the water fountain had a sharp edge on the underside and  there was a real and foreseeable risk of children coming into contact with it. It was suggested that had the school applied its mind to that risk it would not have agreed to the fountain being installed or it would have taken active steps to round off, cap or tape the sharp edge.

The defence denied the water fountain was sharp edged on its underside and that the defendant was in breach of any duty of care. Its case was that the cause of the injury was the spontaneous and unpredictable act of the boy in forcibly striking the water fountain which was not unduly sharp to normal touch. It argued the sort of injury the boy sustained would not occur during normal use of the water fountain and the boy would have suffered a trauma injury as a result of forcibly punching the water fountain anyway.

The case was – or should have been – a straightforward one under the Occupiers Liability Act. The boy contended that the bottom edge of the water fountain was sharp and/or otherwise dangerous such that there was a foreseeable risk that children, who are sometimes less careful than adults, were likely to suffer serious injury if they came into the contact with this area with force.

For the defendant it was said that the duty of care is not absolute: unless there is foreseeable risk of significant injury the common law duty of care does not require the occupier of premises to take any steps and in this case, there was no foreseeable risk of significant injury posed by what is a commonly installed water fountain. While an occupier of premises must be prepared for child visitors to be less careful than adults, the water fountain represented no foreseeable danger.

At the hearing in November, the Judge said, that, in his opinion, the underside of the water fountain (which he had examined) was sharp. He said he was forced to the conclusion that the school had not properly considered the risk of harm or what risk the water fountain might pose to children. There was a distinct possibility that children might skylark around, and could easily trip and cut their heads against the underside of the water fountain. He said he failed to see that the school had actually carried out a properly considered risk assessment and found the defendant was liable in damages in the agreed sum of £3,215.16. He made no finding of contributory negligence.

The council was surprised by the judgment and launched an appeal. The appeal was heard by the Court of Appeal, with the Master of The Rolls sitting, and judgment was handed down on 16 October 2013.

The Court took the view that the original judge had failed either to identify or resolve correct the legal issues and had proceeded on the flawed basis that once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendant was liable for what happened unless the school had conducted what the judge described as a properly considered risk assessment.

The Court of Appeal said that the question which had to be addressed, therefore, is whether as a matter of objective fact, visitors to the school were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind that children do not behave like adults and are inclined to lark around.

In the court’s view the answer to that question was yes. The water fountain was reasonably safe. The court had looked at and felt the underside edge of the water fountain and did not think it could be described as sharp. But whether it could be described as sharp or not, by no stretch of the imagination, could it be said to constitute a danger to children. Certainly, the edge could have been bevelled, or padded, and had that been done, the boy might not have injured his thumb by a cut. However, in this case it misses the point – or so it seemed to the court – that felt that the school was not under a duty to safeguard the children against harm under all circumstances.

Each case is of course fact sensitive, but as a matter of generality, the school was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves while on school premises. The law would part company with common sense if that were the case, and the court did not consider that it does so.

It is of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen. This was not a case where the defendant was liable in law for his injury and the appeal was allowed.

Why has this case created debate around the world? Common sense – something we see too little of these days when dealing with personal injury claims. Perhaps we have ‘started a debate’.

Robin Churchill is a partner at Mayo Wynne Baxter and acted for West Sussex CC in this case. He can be contacted on 01273 223235 or by This email address is being protected from spambots. You need JavaScript enabled to view it..