CC (by his litigation friend MC) v Leeds City Council CC [2018] EWHC 1312 (QB)

Introduction

In CC (by his litigation friend MC) v Leeds City Council [2018] EWHC 1312 (QB), the Queen's Bench Division gave guidance on the consequences of failing to implement control measures identified in a risk assessment.

In this article James Manning summarises the findings at first instance and on Appeal, and provides a useful reminder on the degree of care that needs to be exercised by local authorities when preparing risk assessments and implementing control measures.

Summary of Facts

The Claimant ("CC"), a child aged 10, was part of small group of family and friends who attended Kirkstall Abbey, a historic monastery owned by Leeds City Council ("LCC").

At Kirkstall Abbey, LCC provided a number of rides and amusements aimed specifically at children. One of the amusements was Hangar 51, where children were equipped with laser guns and sent into battle inside an inflatable hangar that was divided into nine pods. The laser battle took place in relative darkness and it would take a short while for the children's eyes to adapt to the conditions. The pods within Hangar 51 were at different levels and were separated by ridges, described as "tripping points". 

CC entered Hangar 51 and, within approximately 30 seconds, tripped over one of the ridges and fell. The laser gun struck his front teeth and caused injuries.

First Instance

HHJ Saffman determined that CC's accident was caused by LCC's negligence in that:

• LCC had failed to warn CC of the tripping points within Hangar 51; and
• LCC had failed to ensure that the tripping points were more visible by applying fluorescent strips or nosing to the edge of the ridges.

Appeal

On appeal, LCC submitted that HHJ Saffman was wrong for the following reasons:

• He imposed a high standard of care upon LCC that failed to take into consideration the "public liability dimension to the claim"; the low volume of similar accidents at Hangar 51; the lack of Hangar 51 participants suffering serious injury; and the fact that the ridges were not defective;
• He failed to apply section 1 of the Compensation Act 2006 when assessing the standard of care expected of LCC;
• He erred on breach of duty when he took into consideration evidence that was not in fact given as to the practicability of installing preventative measures and failed to take into account the advice and guidance of the manufacturer of Hangar 51; and
• He failed to identify any pleaded breach of duty that caused CC's accident.

Breach of Duty

LCC's risk assessment in respect of the use of Hangar 51 was prepared four months before the date of CC's accident. Tripping accidents were identified as a foreseeable risk and the suggested control measure was "participants to be warned about ridge between pods and about the potential to trip over them".

LCC's supervisors were supplied with a warning script and issued a verbal warning to participants, before the activity started, not to run within Hangar 51. However the warning script did not mention the ridges and the potential to trip over them.

Furthermore, LLC's accident history for the summer 2014 season revealed that three similar tripping accidents had occurred the week before CC's accident, and one similar tripping accident happened the following week. LCC, recognising that the weight of the evidence was overwhelming, did not pursue these grounds of the appeal.

Causation

LCC's submissions on causation focused on two distinct points. These were:

• HHJ Saffman did not make a finding that the failure to warn about the ridges and tripping points caused CC's accident; and
• HHJ Saffman should have held that it had not been established that a warning would have prevented CC's accident from happening, as the Claimant accepted that he had seen the tripping hazard before he fell over it.

So far as the first limb was concerned, HHJ Saffman had stated that LCC's failure to warn was a stand-alone cause of the accident. As to the second limb, a distinction was made between CC's inaccurate assessment of the difference in height between the pods (he was not able to judge the degree of hazard because of the lighting conditions), and LCC's actual knowledge of the hazard. The appeal court found that issuing a warning that was consistent with the control measure identified by LCC would have alerted CC that the difference in height would represent a tripping hazard if he was not careful.

LCC's concession that it had failed to issue a warning to CC and the findings on causation meant that there was no need to consider HHJ Saffman's approach in relation to the omission of fluorescent strips to the ridges or other preventative measures.

The appeal was dismissed on all grounds.

Comments

This case serves as a useful reminder of ensuring that where a reasonably foreseeable risk is identified, reasonable control measures are devised and implemented fully.

In this case, LCC correctly identified the risk of tripping and planned to warn participants verbally about the danger. Fatally, however, this warning was not given to participants because it was not incorporated into the warning script.

From a risk management perspective, a consistent approach in identifying, devising and implementing reasonable control measures is crucial, particularly in activities aimed at children. 

Please contact James Manning for more information.