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Face facts and spot the danger signs regarding duty of care

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legal matters

Building sites are dangerous places, and questions arise as to what can and should be done to protect the public in the vicinity, writes Susan Lindsey. Last year the Court of Appeal considered Tashan Gabriel's claim against Kirklees Metropolitan Council (24 March 2004), and its judgment illustrates a number of factors that a site owner may have to take into account.

Tashan was aged six when he walked past a site owned by Kirklees. He did not trespass onto the site but other children had. Those children were playing on the site, throwing debris. Tashan was hit in the eye, and suffered a serious injury. Tashan's case was that the whole site was covered in rubble at the time. Kirklees agreed that when the accident happened the site had been partially excavated. It seems that Kirklees may have decided not to put up a perimeter fence because it thought that it might prove an attractive climbing feature for children from nearby housing, rather then keeping them out.

The council denied that it owed a duty of care to Tashan; he was a passer-by who had been injured by trespassers. The trial judge agreed but the Court of Appeal was critical of her judgment. The court pointed to several matters on which it said that findings of fact were needed in order to decide whether a duty of care was owed, but the judge had made no findings on these matters.

The case was sent back for a retrial, with guidance from the Court of Appeal as to what needed to be looked at in order to conclude whether a duty of care was owed. While the outcome of the retrial will turn on the particular facts, more interesting is to think about the sorts of fact the court said should be considered. These can be applied generally and extended by analogy to consider possible duties of care in other types of situation.

To decide whether there was a duty of care owed, the following questions needed to be answered:

l Was it reasonably foreseeable that children would go onto the site?

l If they did, was it reasonably foreseeable that they would play there?

l Was it reasonably foreseeable that if they played there, they would throw what came to hand?

l In doing that, was it reasonably foreseeable that passers-by might be injured?

To answer this string of legal questions, the nitty-gritty facts had to be resolved. A duty of care could only have arisen as a result of the combination of the presence of children playing on the site and the rubble that was on the site.

So findings of fact about the site were needed.

What was its relation to the surrounding area, and how big was it? What was its general condition? What was the extent and type of debris on it? Had the rubble been allowed to accumulate such that it was an allurement to trespassing children to play with it and throw it about? The court referred to Lord Hoffman's observation in another case that 'children's ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated'.

What did the council know, or could it have found out, about the risk that children would trespass on the site and play there? The Court of Appeal referred to several passages in the site health and safety documents that suggested that the council was aware of the risk of children going onto the site.

However, if the risk was a very small one, the council may have been justified in disregarding it. The courts take into account the balancing act of weighing a risk against the difficulty and cost of eliminating it.

The judgment emphasises the focus that the court will place on the facts in each case of this type in deciding whether a duty of care was owed. Site owners and their professional advisors are well placed to undertake such a fact-based analysis with a view to avoiding such accidents happening; it does not entail answering difficult legal questions. Furthermore, it is a necessary task as there is no easy rule of thumb as to what should or should not be done in every case.

Susan Lindsey is a barrister at Crown Office Chambers. Visit www. crownofficechambers. com

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