Council Injury Claim

Master Tashan Gabriel V Kirklees Metropolitan Council (2004)

The judge erred in failing to find sufficient facts to determine whether the defendant local authority owed a duty of care to the claimant, who was injured by a stone thrown from the local authority's building site, and the case should be remitted for consideration by a different judge.

The claimant (G) appealed against the decision that the defendant local authority owed no duty of care to G who was struck in the eye by a stone or mud thrown by children playing on a building site which was owned by the local authority. G was struck whilst walking past the site . Demolition work was being undertaken on the site. The site, which was covered in rubble, was surrounded by residential accommodation and no perimeter fence had been erected.

G alleged that the site was used by local children as a play area and claimed damages for personal injury alleging that the local authority was negligent in failing to fence the site and preventing it from being used as a play area. The judge dismissed the claim on the ground that the local authority did not owe a duty of care to G walking past the site and held that the council could be liable for injury arising in that way if it was reasonably foreseeable, but that it was not.

HELD: The judge was wrong to hold that a duty of care would arise if it was shown that there was a foreseeable risk of injury to passers-by. If it was reasonably foreseeable that injury might be caused to a passer-by by the activities of children playing on the site, the interrelated questions of whether the council owed a duty of care to remove that risk, or whether a failure to take steps to remove the risk amounted to a breach of that duty, still remained for determination .

Proof of the foreseeability of risk of injury was a necessary but not a sufficient condition of liability (Smith v Littlewoods Organisation Ltd Independent, February 5, 1987 applied). In determining whether there was a duty of care and whether, if such a duty existed, there was a breach, it was necessary to make detailed findings of fact which the judge had failed to do.

She made no reference to documents showing that the local authority was aware of the risk of children gaining access to the site and the dangers to the surrounding area resulting from conditions on the site.

Before concluding that there was no duty of care the judge ought to have asked whether it was reasonably foreseeable that children would go onto the site, play there, throw whatever came to hand and cause injury to those passing by on the pavement. In order to answer those questions it was necessary for the judge to make findings of fact as to the council's knowledge and means of knowledge. The judge erred in failing to find sufficient facts to determine whether a duty was owed or not and the case should be remitted for consideration by a different judge.

Appeal allowed.

Personal Injury - Negligence

CA (Ward LJ, Jonathan Parker LJ, Moses J) 24/3/2004

LTL 24/3/2004 (Unreported elsewhere)

Document No.: AC0108069