(PD13/08)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

LISA WARDLE

Pursuer and Appellant

against

SCOTTISH BORDERS COUNCIL

Act: Crooks, Solicitor, Bonnar & Co

Alt: Davies, Solicitor, Simpson & Marwick

EDINBURGH, 31 JANUARY 2011

The Sheriff Principal having resumed consideration of the cause sustains the appeal against the Sheriff's interlocutor of 2 December 2009; amends Finding in Fact 4 contained therein by adding at the end the following: "At the material time, there was no barrier or other formal protection to prevent access to the rafters"; deletes Finding in Fact 12 and substitutes therefor the following: "Children have managed to get on to and swing from the rafters in the shelter from time to time for many years. In their accessible state, the rafters were an attraction to children to engage in activities such as climbing and swinging on them"; deletes the existing Findings in Fact and Law and substitutes therefor the following:

(1) The defenders as occupiers of the subjects whereon the shelter was situated had a duty of care towards Abigail under section 2(1) of the Occupiers Liability (Scotland) Act to take such care for her as was reasonable in all the circumstances.

(2) The said exposed rafters were accessible and constituted an attraction to children to climb on and to swing from them, and a child who did so was liable to lose her grip on the rafters fall and sustain injury.

(3) The said accessible rafters accordingly constituted a foreseeable danger to children such as Abigail.

(4) It was reasonable and practicable to render the rafters inaccessible to children by installing boarding on either side of each of the lower rafters.

(5) The defenders had accordingly a duty to render the exposed rafters inaccessible by said method but did not do so. Had they complied with said duty the said accident to Abigail would not have happened."

Finds in Law

(1) The said child having suffered loss, injury and damage as a result of the breach of statutory duty on the part of the defenders, the pursuer qua guardian is entitled to reparation from them therefor.

(2) The accident having been materially contributed to by fault on the part of said child the award of damages to her should be reduced in terms of the Law Reform Contributory Negligence Act 1945 to the extent of 50%.

Thereafter recalls the decree complained of; sustains the first and second pleas-in-law for the pursuer and the fifth plea-in-law for the defenders; quoad ultra repels the defenders pleas-in-law; decerns against the defenders for payment to the pursuer of the sum of £2,000 sterling with interest thereon at the rate of 8 per centum per annum from 17 June 2009 until payment; Finds the defenders liable to the pursuer in the expenses of the action on the ordinary cause scale and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

Note:/

NOTE:

1. Cases in which children have climbed onto things, and fallen or otherwise sustained injury, are no novelty in the law. In Findlay v Angus 1887 14R 312 two children climbed on to a louvered door on a peat shed and dislodged it from its frame, causing injury to a third child. In some cases injuries have been serious and indeed fatal as in Devlin v Strathclyde Regional Council 1993 SLT 699. What is well recognised is that the ingenuity of children "in finding unexpected ways of doing mischief to themselves and others should never be underestimated": per Lord Hoffman in Jolley v Sutton London Borough Council 2001 WLR 1082 at 1093C.

2. In the present case a child of nine years climbed into the rafters of a shelter in the playground of her primary school. She fell, and injured her wrist. There were in fact two sets of rafters in the shelter, upper and lower. The top edge of the lower rafters was 2.18 metres above ground level, and the top edge of the upper rafters 2.77 metres above ground level. What the child did was to climb on to the lower rafters then swing from the upper rafters which she referred to in evidence as "the monkey bars". It cannot be surprising that children will find exposed rafters an attractive venue for recreation; the height reached in this particular case may be remarkable.

3. Part of the evidence - which is the subject of Finding in Fact 15 made by the Sheriff - was to the effect that about two months after the accident the defenders installed boarding on each side of the lower rafters so that children could not take hold of them and use them to gain access to the upper rafters. The Sheriff describes this as "an inexpensive and effective response to the accident".

4. The pursuer's case against the defenders was based in law on section 2(1) of the Occupiers Liability (Scotland) Act 1960. In amplifying the duties said to be incumbent upon the defenders as occupiers of the premises the pursuer averred that the defenders "knew or ought to have known that the behaviour of children was unpredictable. They knew or ought to have known that the shed and exposed rafters were an allurement to children. They knew or ought to have known there was a real risk that children would play within the shed and attempt to use the rafters during play. In the circumstances they had a duty to take reasonable care to see that children could not gain access to the wooden rafters by boarding them up as in fact they partly did after the accident by boarding up the lower beams".

5. The defenders' response was a general denial of the breach of any duties incumbent upon them under section 2(1) of the 1960 Act. They averred that the accident was wholly caused or at least materially contributed to by fault on the part of the child. In answer to a common law case of fault pled by the pursuers (which was not insisted on following proof) the defenders averred that the shelter was not inherently dangerous; that they were unaware of children having played on the rafters prior to the accident; and that children were regularly advised of the need to take care for their own safety and that of others and were told to play only on school recreational equipment.

6. The Sheriff found in favour of the defenders. The first Finding in Fact in Law is to the effect that the defenders "exercised such care as in all the circumstances of the case was reasonable" to see that the child would not suffer injury or damage by reason of any danger due to the state of premises or to anything done or omitted to be done on them.

7. I do not think that this general finding records the precise basis on which the Sheriff determined the case. Finding in Fact 12 is in the following terms: "Although children have managed to get into the rafters from time to time over the years, staff at the school in 2007 were unaware of this. There was no record of any accident arising as a result of a child climbing into the rafters. Staff at the school did not foresee that any child would climb into the rafters. The reason that this was not foreseen was that staff reasonably believed that children could be prevented from putting themselves in danger by climbing onto trees, fences and buildings generally by the rules against climbing, instruction on the dangers of climbing and by the levels of supervision in existence in the playgrounds".

8. That finding strongly suggests that the basis of the Sheriff's conclusion that the defenders were not at fault was that the accident was not foreseeable to staff at the school. The impression that the case was determined on the issue of foreseeability is confirmed by the Sheriff's comments in paragraph 24 of her Note where she says: "Had the defenders appreciated that there was a real risk that a child would attempt to climb into the rafters of the shelter in question there were reasonable and practical steps that they could have taken to prevent this occurring, but it is my conclusion that such activity was not reasonably foreseeable, and the defenders cannot be held responsible for failing to erect boards on either side of the lower rafters prior to the accident in this case".

9. I also note that paragraph 18 of the Sheriff's Note is in the following terms: "The premises in this particular case were not in themselves defective. On the other hand if children were permitted to abuse the structure of the playground shelter by climbing into and swinging from the rafters then there was clearly a risk that they would fall and suffer injury. In that sense the exposed rafters did present a risk to children. It was however, for the pursuer to establish on the evidence that the defenders knew or ought to have known that there was a risk that children would climb into the exposed rafters in the shelter. The pursuer's case was that the rafters represented an allurement to children of (the age of the child in question) and the defenders knew or ought to have known that children did climb into the rafters. The pursuer has not however established that the defenders actually knew that children climbed into the rafters of the shelter". The Sheriff went on to comment that the Deputy Head Teacher, Mr Wilson, did not know that children climbed into the rafters and had made enquiries of other members of staff who reported that they did not know of such activity.

10. One of the grounds of appeal is that the Sheriff erred in finding that the accident suffered by the child was not foreseeable. I have no real difficulty in sustaining that contention and holding that, on the basis of the paragraphs above, the Sheriff has misdirected herself in relation to the question of foreseeability. Whilst it is correct that, in order to comply with the duty of care imposed by section 2(1) of the 1960 Act, an occupier is required to show "such care as in all the circumstances of the case is reasonable", the test used in determining whether the duty has been fulfilled is an objective one: see McGlone v British Railways Board 1966 SC(HL) 3 at 16. The question of whether an accident of the type sustained by the child in this case was foreseeable was not, in consequence, whether it was foreseeable to the staff of the school (which on any view is clearly wrong) or to the defenders themselves as occupiers, but whether it could have been foreseen by a reasonably careful person: see for example the remarks of Lord Guest in Hughes v Lord Advocate 1963 SC(HL) 31 at 46.

11. In the present case evidence was led on behalf of the pursuer from Dr Howieson, a chartered architect and chartered engineer of many years experience. In his report he described the two levels of rafters in the shelter. He said: "Once access has been gained to level one the challenge is then to climb through the opening and gain access to the upper ties that facilitate the lateral transfer of the child athlete using skills more usually associated with our evolutionary antecedents. Despite the warnings issued by the school this particular shed will no doubt have provided hours of entertainment to generations of school children". He continued: "The cross ties clearly provide an athletic challenge to children and therefore the locus presents a reasonably foreseeable hazard".

12. At paragraph 19 of her Note the Sheriff states: "The pursuer's case must...rest on the proposition that it should have been obvious to the defenders that children would climb into the rafters. Dr Howieson maintained that this was the case, but I do not accept that he was an expert in relation to assessment of risk in primary schools. Mr Wilson did not expect children to be in the rafters...the children in the upper primary playground were subject to school discipline, had received appropriate instruction in relation to their own health and safety and were supervised by at least one adult and by P7 monitors". This passage appears to me to again demonstrate a confusion over foreseeability. It did not require an expert in relation to the assessment of risk in primary schools to say that is was reasonably foreseeable that children would climb into the rafters of the playground shelter. That was a question to be judged objectively by the standard of the reasonable man. The failure to apply this test has, in my judgment, led the Sheriff to the view set out in paragraph 18 of her Note as quoted above that it was necessary for the pursuer to prove that the defenders knew that children actually climbed into the rafters.

13. It is perhaps not without significance that at a very early stage of her evidence the child in this case referred to the rafters as "the monkey bars". Whether Dr Howieson was aware of this nomenclature when he made reference to "our evolutionary antecedents" may be a matter of conjecture, but it is an expression which appears to me to be eloquent of how children as young as nine viewed the rafters in question. I would have thought that it was fairly obvious that the rafters would have been attractive to children for climbing purposes, and it is interesting to note that the defenders' pleadings do not, so far as I can see, contain any contention that the activity engaged in was not foreseeable. In that situation I am bound to conclude that the basis upon which this case has been decided in favour of the defenders cannot stand.

14. On the basis that the defenders ought to have known that there was a real risk that children would attempt to swing from the rafters during playtime the proper issue in the case was whether the defenders took sufficient steps to protect them from the dangers of this activity. In this respect the Sheriff records (at paragraph 25) that "In this case the defenders had three clear measures in place to protect children from harm in the playground including the shelters. First, there were school rules which prohibited climbing. The rules were made known to the pupils. A child who broke the rules could expect to be disciplined. Second, pupils at the school received instruction in relation to health and safety. They were taught about making choices and keeping themselves safe. They were taught that if they climbed walls they could fall and hurt themselves. Third, there was playground supervision. An adult patrolled the playground during breaks. Adult supervision was supplemented by the use of P7 monitors". Aside from the question of whether it could ever be said to be sufficient to issue general warnings to children as to the dangers of climbing having regard to their proclivities as expressed by Lord Hoffman, it is in my view not possible to say in the circumstances of this case that these measures were sufficient. The reason for that is simply that as indicated earlier the Sheriff considered that "had the defenders appreciated that there was a real risk that a child would attempt to climb into the rafters of the shelter in question there were reasonable and practical steps that they could have taken. That step was in fact taken subsequent to the accident, namely the erection of boards on either side of the lower rafters". The fact that this step was not taken prior to the accident is, in my view, sufficient to hold that the defenders were at fault.

15. What is perhaps unique about this case is contained in the circumstances set out in Finding in Fact 9. This discloses that during the lunch break on 14 September 2007, the date of the accident, Mr Wilson was told that children were hanging from the rafters of the shelter in the upper primary playground. He immediately went there and found the child who is the subject of this action along with another girl. They admitted that they had been climbing in the rafters and appeared to have been well warned not to do so again. The child appears to have ignored this warning since her accident occurred even before Mr Wilson had returned to his office since he found her there in pain and holding her arm when he got back to it.

16. One could have sympathy with the view that it was reasonable on the part of Mr Wilson not to have expected the child to disobey his instruction as soon as he turned his back. This view may have influenced the Sheriff in her approach to the question of foreseeability. In a sense it was not "foreseeable" to Mr Wilson that the child would climb into the rafters within seconds of him warning her not to, although he did accept in cross-examination that children of primary school age can do precisely what they have been told not to. But this is not the "foreseeability" question which the court had to address. This aspect of the case more properly raises the question of whether and to what extent there was contributory negligence on the part of the child having regard to her age.

17. On behalf of the pursuer it was submitted that any finding of contributory negligence should be no greater than 20%. Reference was made to passages in Clarke and Lindsell on Torts (20^th Ed) in particular paragraph 3-68 where it is stated that conduct on the part of a child which contributes to an accident will not necessarily be judged in the same light as similar conduct by an adult. In a footnote the authors point out that the Royal Commission on Civil Liability and Compensation for Personal Injury, reporting in 1978 (CMND 7054 Vol 1 para 1077) recommended that where a child is under 12 contributory negligence should not be pleadable. In paragraph 3-69 of the same textbook it is stated: "A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected (sic) to take precautions for his or her own safety". The passage continues: "Theoretically there is no age below which as a matter of law it can be said that a child cannot be guilty of contributory negligence, but in practice it is unreasonable to expect a high standard".

18. A number of cases were cited in which there had been findings of contributory negligence against children. These were Telfer v Glasgow Corporation and Others 1974 SLT (N) 51 (boy of 10 who fell through a roof, 50% to blame); Dawson v Scottish Power PLC 1999 SLT 672 (boy of 11 climbing on a spiked fence, ⅓ to blame); Young v Kent County Council 2005 EWHC 1342 (QB) (boy of 121/2 climbed on roof of school building, 50% to blame); N (a child) v Newham LBC 2007 SLY 2931 (7 year old child who punched a glass door, 60% to blame) and Morton v Glasgow City Council 2007 SLT (Sh Ct) 81 (14 year old boy climbed on scaffolding and fell off, 25% to blame).

19. The solicitor for the defenders and respondents contended that the level of contributory negligence in this case was substantial; it should be of the order of 75% and certainly no less than 50%. She referred to the fact that in N (a child) (supra) the report contained a statement that "even a 7 year old would have been aware that that if he punched a pane of glass it was likely to break and cause him injury". That was the basis upon which the child was held to be 60% to blame for what happened. The same applied in this case. The child knew the difference between right and wrong and knew that she was breaking school rules.

20. The extent to which a child has brought about her own misfortune in a case of this nature can only be approached very broadly. There is no doubt that the child here was perfectly well aware of the risk; she herself admitted such in cross-examination. There is also the fact that she had been warned against the activity in question very shortly before the accident took place. In that situation I consider that her responsibility for the accident must be assessed at more than that suggested by the solicitor for the pursuer. I consider that a finding of 50% contributory negligence would be consistent with the findings in the line of Scottish and English cases referred to. As parties were agreed that on the basis of full liability damages should be assessed at £4.000. I shall grant decree for £2,000.

21. The solicitor for the pursuer acknowledged that expenses on the summary cause scale might be appropriate for a case in which damages had been agreed at £4,000. He nevertheless contended that it was an appropriate case to be raised as an ordinary cause. A valuation in excess of £5,000 could not be said to be more than marginally optimistic, and the issues raised both factually and legally were such as to render the case unsuitable for summary cause procedure. The solicitor for the defenders maintained that expenses should be calculated with reference to the sum decerned for. There was nothing inherently complex about the case; it had only become complicated when it proceeded to an appeal.

22. I am inclined to accept that fundamentally this case was not particularly complex, but it certainly became so as it evolved. On balance I agree with the submission that it was not particularly suited to summary cause procedure and I am accordingly persuaded that expenses on the ordinary cause scale should be allowed.