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Put to the test

RCJ portrait 146x219The High Court recently examined the test of liability under the Occupiers Liability Act 1957 in a case involving two local authorities. Nicola Hyam and Tonya Baxter explain the findings and also examine comments from the judge on the issue of contributory negligence.

The case of Armstrong (a protected party) v Keepmoat Homes Ltd (1) Northumberland CC (2) Blyth Valley BC (3) involved a 12-year-old Claimant, seriously injured when she walked through a gap in undergrowth on adjoining land, into the path of a vehicle on a dual carriageway. Her claim under the Occupiers Liability Act 1957 against the First Defendant for creating the gap and against the Second and Third Defendant Council for failing to prevent access to the road was dismissed in a judgment which examines the test of liability under OLA 1957 and the question of what gave rise to the danger.

Facts

On 20 July 2001, the 12-year-old Claimant was involved in a serious road traffic accident as she crossed a busy dual carriageway with a friend. The girls could have crossed using either a footbridge or a pavement that passed underneath the road but instead, they walked along a track towards the edge of the road bordered by a dense area of trees, scrub and undergrowth. At one point, there was a significant gap and the girls walked through it to reach the road. The Claimant stepped out in front of a car and was immediately struck by it.

The First Defendant (‘Keepmoat’) was a firm of house builders who had recently constructed a small estate of houses adjacent to the road. The Second Defendant (‘the Council’) owned and maintained the land between the housing estate and the road and was the successor in title to the Third Defendant.

The Claimant alleged that:

  • Keepmoat had created a danger by removing a fence, enlarging the gap it had covered and failing to replace it;
  • The Council had failed to take steps to prevent visitors to the adjoining land from gaining access to a fast moving dual carriageway by failing to put up a fence such as was done after the accident at the request of the police.

The Claimant principally relied on the evidence of one witness, who had a history of complaining to the Council. His evidence was that Keepmoat had removed the fence to erect an advertising sign and had not replaced it. He also claimed to have written to the Council to notify them of the gap and the specific danger it posed to children.

Findings

Wood HHJ, dismissing the Claimant’s claim, held:

  • At some point there had probably been a post and rail fence dating back to the construction of the road which had been removed. However Keepmoat’s evidence was compelling: they had neither removed the fence nor put up an advertising sign.
  • On the evidence, there was in fact no complaint about the gap. However, the Council had constructive knowledge of its existence and the path leading up to it. The Council could also reasonably have been expected to foresee that children, in their capacity as lawful visitors, might be tempted to use the path as a shortcut across the dual carriageway.
  • Whilst this was not enough to found any liability under the Occupiers Liability Act 1984 (had the Claimant been a trespasser), no such constraint applied under the 1957 Act and the Council, as occupier, had impliedly consented to the path being used by lawful visitors, including the Claimant.
  • However, the injury had to be reasonably foreseeable as arising from the duty owed by the occupier regarding the state of his land and dangers arising from it. Here, the danger did not arise from the Council's land but rather from the adjacent dual carriageway.
  • The test of liability was not one of foreseeable harm but rather whether what the Claimant did had been impliedly consented to. The use of the path was consented to, and gave rise to the opportunity for her to enter onto the highway, but that opportunity was not created by any breach of the 1957 Act. The absence of a child-proof fence created an opportunity, but was not the cause of the accident.

Contributory negligence

  • Notwithstanding there was no liability on the part of any of the Defendants, the issue of contributory negligence of a 12 year old was considered. If there had been a finding of a positive duty to erect a fence of the post and rail type previously in situ, the Claimant's conduct would have registered high in relation to both causal potency and blameworthiness and her contribution would have been assessed at 75%.
  • Different considerations would have applied had it been found that a duty to erect a child proof fence existed: such a breach would broadly reverse the relative blameworthiness and causal potency of the parties and her contribution would have been assessed as being 25%.

Comment

This case follows the House of Lords decision in Tomlinson v Congleton BC (2003) confirming that there is no duty on an occupier to guard against dangers on neighbouring land where the danger is obvious. The danger here was not on the Council’s land but was the busy dual carriageway, which was separated from the Council’s land by a significant grass verge. The danger of the road was obvious, even to a 12-year-old child and indeed the evidence of the Claimant’s friend was that they waited at the side of the road to cross before, tragically, the Claimant stepped into the path of a passing vehicle. The general rule of thumb that there is no positive duty to fence land adjoining the highway remains intact.

This case arose out of a road traffic accident yet, surprisingly, no claim was brought against the car driver. Apparently, the Claimant did not consider the driver responsible in any way and proceedings against the driver were never contemplated. By the time proceedings were intimated the police collision report had been destroyed.

Another feature of this claim was the Claimant’s delay in intimating it.  Whilst the judge had sympathy for the Claimant’s reasons for the delay, the consequence was that both the quality and volume of potential evidence had been reduced.

The judge’s comments on the issue of contributory negligence were very interesting. A finding of 75% against a 12-year-old child who sustained severe injuries may come as a surprise to many.

All the parties agreed that contributory negligence could apply, in principle, to a 12-year-old girl. The Claimant argued for a reduction in the region of 30–50%, while the Defendants contended for 66–75%. The judge was guided by Toropdar v D (2009) (HC) notwithstanding that the Defendants were not drivers of vehicles. Taking account of the Claimant’s age, awareness of what she was doing, and her failure to look for traffic she was held to be 75% to blame for her own injuries.

It should be remembered though that these comments were made against the backdrop of a hypothetical finding that there should have been a fence of the type previously in place. This was a simple post and rail fence, the purpose of which had never been to prevent people choosing to cross the road, and the judge wondered whether the presence of such a fence would have made any difference at all.

Having said that, recent case law on the point of child contributory negligence perhaps reflects the fact that road safety is now incorporated into the National Curriculum and therefore the degree of care expected from children involved in road traffic collisions has been elevated. The Court of Appeal case of Ehrari v Curry (2007) saw a 13-year-old girl who stepped out from between parked cars in a busy street with other children around being found 70% contributory negligent. The driver’s contribution was determined on the basis that he should have been more careful, having noticed other children in the area.

Nicola Hyam is a partner and Tonya Baxter is a solicitor in the insurance team at DWF. Nicola, who acted for the second and third defendants in this case, can be contacted on 0191 233 9740 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..