Child trespassers’ cases made harder to win
An 11-year-old boy climbed the outside of a fire escape attached to a building within the grounds of a hospital. He was imitating older children he had seen use diagonal cross braces to scale the fire escape. He fell about 30 feet, sustaining significant brain damage.
The defendant knew of the presence of children playing in the grounds and had taken a tolerant attitude but had not known they were using fire escapes as climbing frames.
At the first trial it was held that the defendant NHS Trust was in breach of a duty owed under the Occupiers’ Liability Act 1984 with a finding of contributory negligence of two-thirds on the grounds that the claimant had appreciated that what he was doing was dangerous and that he should not have been doing it.
Before the Court of Appeal the defendant trust argued that the claimant had sustained his injury not due to any “danger due to the state of the premises” (see section 1(1)(a) of the 1984Act) but due to the activity in which he had chosen to indulge on otherwise safe premises.
The Court of Appeal, allowing the appeal and setting judgment aside, agreed that the threshold requirement of “danger due to the state of the premises” was not present in this case. The distinction between the state of the premises and an activity thereon had been highlighted by Lord Phillips in Donoghue -v- Folkstone Properties Ltd  QB 1008 and by Lord Hoffmann in Tomlinson -v- Congleton Borough Council  1AC 46.
Dealing with the fact that the claimant was in the present case a child, Longmore LJ said that premises that were not dangerous from the point of view of an adult can be dangerous for a child but it must be a question of fact and degree. He did not regard it as seriously arguable that the risk to the child arose out of the state of the premises rather than out of what the child chose to do.
Lewison J agreed with Longmore LJ and went on to add that the age of the trespasser would not usually affect the question whether the danger is or is not a danger attributable to the state of the premises. Dealing with an argument of allurement, he pointed out that safe premises do not generally become unsafe because they are attractive.
Keown -v- Coventry Healthcare NHS Trust, Court of Appeal, 2 February 2006.