Dyer v East Sussex County Council, Brighton County Court (Judge Simpkiss)
This is an interesting case where the claimant, aged 14 at the time of the accident, sustained a significant head injury when he was struck by a metal gate during his lunch break. This gate was part of a fence restricting access to an area that was out of bounds to pupils. There was evidence that footballs sometimes went over the top of the fence but pupils were supposed to let the teacher know if this happened so they could obtain permission to open the gate, which was normally locked.
On the day of the accident, the gate had not been locked and the claimant had been playing with his friends, one of whom had kicked the gate open causing it to swing into the claimant’s face with considerable force.
The claimant alleged that the defendant was in breach of its common law duty of care owed to visitors under the Occupiers’ Liability Act 1957 (OLA 1957) and if it was deemed that they were not a visitor under the OLA 1957, then the defendant still owed them a common law duty of care because they were a pupil at the school.
The court held that the claimant was not in a prohibited area at the time of the accident but was engaged in an activity which was not permitted by the defendant, because he was using the gate to trap another pupil inside the passageway.
The court made clear that even if the OLA 1957 did not apply then the defendant was under a common law duty of care to take such steps, as were in the circumstances reasonable to ensure that the claimant was kept reasonably safe whilst on school premises. The court made clear that the scope of this common law duty is different to the duty owed under the OLA 1957 and is assessed by looking at all of the circumstances and the nature of the claimant’s presence on school premises.
The court held, depending on the circumstances of the case, that the defendant may be under a duty to protect pupils from injuries caused during horseplay if these injuries were reasonably foreseeable.
The key question was whether it would have been reasonable for the gate to have been locked at all times and accessible if a pupil requested access to cover a ball under supervision. On the facts, the court concluded that the accident was not reasonably foreseeable and was instead remote. As a result, the court held that the defendant could not be liable for failing to maintain a secure lock on the gate when the chain of events that gave rise to the claimant’s accident could not have reasonably been predicted prior to it occurring.
Also the court held that the claimant had been adequately supervised and it was stressed that although accidents can happen with gates and doors, this does not mean that they all have to be kept locked when in a school environment.
What this means for you
In this case, a very simple, cheap and easy step could have been taken by the defendant, which would have prevented the claimant’s accident. However, the court made it clear that at the time, the accident was not reasonably foreseeable and the risk of an accident occurring due to the gate being misused was remote. As a result, the court was not prepared to assess liability based on the benefit of hindsight when at the time it was not foreseeable that the claimant’s accident could occur.
This case would have likely been decided differently if the defendant had known that the gate was frequently being misused by pupils but took no steps to prevent this from happening. It can be seen that any misuse of the gate would increase the risk of an accident occurring and would make an accident of this nature foreseeable and something which the defendant should protect against. As a result, the defendant would have had sufficient knowledge and would have likely been found liable for failing to ensure that the gate was locked when this was an easy step to take to prevent accidents of this nature from occurring.
It is important to note that cases of this nature are dealt with on the specific facts. The courts will assess these facts when balancing the likelihood of the risk occurring with the degree of any resulting injury and the expense and inconvenience of any remedial steps and precautions being taken to remove the risk.
It should also be noted that just because no previous accidents have occurred this does not mean that an accident is not foreseeable and remote in terms of it occurring. The question of whether an accident is foreseeable is fact sensitive and depends on the risks associated with the activity in question, which is dependent on all of the circumstances of the case. However, this case is positive for defendants because it shows that the courts will not assess liability based on the benefit of hindsight but instead will look at what was known to the defendant at the time of the accident, and in this case, it was not known that pupils misused the gate.