Case No: B3/2012/3324
Neutral Citation Number: [2013] EWCA Civ 1230
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
District Judge Gamba
2WG00108
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/10/2013
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE McFARLANE
and
LADY JUSTICE SHARP
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Between :

	WEST SUSSEX COUNTY COUNCIL	Appellant	
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	MASTER LEWIS PIERCE (A Child by his Litigation Friend MRS ANNETTE PIERCE)	Respondent	

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(Transcript of the Handed Down Judgment of
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Iain O’Donnell (instructed by Mayo Wynne Baxter LLP) for the Appellant
Shahram Sharghy (instructed by Thomas Eggar LLP) for the Respondent

Hearing date : 9 October 2013
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Judgment
Lady Justice Sharp: 
1.	This is an appeal from the order of District Judge Gamba sitting in the Brighton County Court on 26 November 2012. The claimant, Lewis Pierce (a minor, suing by his mother and Litigation Friend, Mrs Annette Pierce) had alleged that he had injured his thumb as a result of the negligence and/or breach of statutory duty of the defendant. The District Judge gave judgment for the claimant for £3,215.16. This consisted of £3,000 in respect of general damages, and £215.16 in respect of special damages.
The factual background and the trial 
2.	 The claimant was born on 14 December 2000. In the summer of 2010 he was nine and half years old, and a pupil at St. Andrews School, Nuthurst, Horsham, West Sussex (‘the School’) which was run by the defendant local authority. It is common ground that at all material times it was an occupier of the School premises within the meaning of the Occupiers’ Liability Act 1957 (the Act) and the claimant was a lawful visitor there. 
3.	On 9 June 2010 a stainless steel wall mounted water fountain was installed on an external wall of the School in a passage way which formed part of the playground. It was installed by Mr Allan Jones, a maintenance engineer who had carried out maintenance work at the School for five years. Later on that day, the claimant, and his younger brother George who was seven were at the School with their mother for an after school gardening club which their mother helped to run. Whilst there the boys got into mischief. They went over to the water fountain.  George sprayed the claimant with water from it and the claimant then tried to punch George, who by then, no doubt prudently, was positioned somewhere underneath the water fountain. George dodged the punch, the claimant missed him, and punched the underside of the water fountain bowl instead, sustaining a laceration to the dorsal aspect of his right thumb and associated tendon damage. The damage to the tendon was repaired shortly afterwards under general anaesthetic. Happily, the claimant subsequently made a full functional recovery. He was left with a hockey stick shaped scar of about 2.7 cm on his thumb about which according to his own medical evidence, he was completely unconcerned.  
4.	In 2012 however, this litigation was begun. The Particulars of Claim alleged that the water fountain had a sharp edge on the underside, that there was a real and foreseeable risk of children coming into contact with the sharp edge and had the defendant applied its mind to that risk it would not have installed the water fountain or it would have taken active steps to round off, cap or tape the sharp edge. A number of statutory and common law breaches of duty were alleged. The Defence denied that the water fountain was sharp edged on its underside, that the defendant was in breach of any duty of care owed to the claimant, or that any breach caused or contributed to the claimant’s injury, loss and damage. Its case was that the cause of the injury was the spontaneous and unpredictable act of the claimant in forcibly striking the water fountain which was not unduly sharp to normal touch; the sort of injury the claimant sustained would not occur during normal or expected or reasonable use and the claimant would have suffered a trauma injury as a result of forcibly punching the water fountain, regardless of whether it had a sharp edge or not. 
5.	The action was assigned to the multi-track.  Quantum was agreed very shortly before the trial, and the trial on the issue of liability came on for hearing on 26 November 2012. In addition to the defendant’s denial of liability, contributory negligence was alleged.  
6.	The case was – or should have been – a straightforward one under the Act. The skeleton arguments of both sides said as much and concentrated on that issue; and the relevant statutory provisions were set out. 
7.	For the defendant it was said that the duty is not absolute: unless there is foreseeable risk of significant injury the common law duty of care does not require the occupier to take any steps. There was no foreseeable risk of significant injury posed by what is a commonly installed water fountain. Whilst an occupier must be prepared for child visitors to be less careful than adults, in part because it is less likely that a child will realise that something is dangerous, the water fountain represented no foreseeable danger, concealed or otherwise. 
8.	The claimant on the other hand contended that the bottom edge of the water fountain was sharp and/or otherwise dangerous such that there was a foreseeable risk that children who are sometimes less careful than adults were likely to suffer serious injury if they came into the contact with this area with force. 
9.	The judge heard from a number of lay witnesses on both sides. These included the claimant who gave a straightforward account that he had injured his thumb by punching the underside of the bowl of the water fountain while bending down slightly and trying to punch his brother. It appears from what he said that he may have caught the top part of his thumb on the edge of the underside as he did so. On the issue of causation, a letter from the claimant’s medical expert, Mr Belcher said that if the underside of the fountain had been rounded or beaded, it is unlikely the claimant would have sustained a laceration, more likely a bruise. 
10.	Miss Harrison (the School Bursar) and Mr Jones explained the circumstances in which the water fountain was chosen and installed. In short, they ordered and Mr Jones installed what both considered to be a safe and suitable replacement from a range manufactured by Acorn Powell Ltd. The model was widely available, and described as suitable for schools with a smooth and rounded radius, and a flat bottom. The judge was shown the actual water fountain from the School, as were the members of this court for the purposes of the appeal. Its shape was certainly a very familiar one to us, and it emerged from the evidence of Mr Powell, the managing director of Acorn Powell that the particular model was in very wide use in public venues: about 8,000 had been installed between 2001 and 2010, most in schools and colleges. Mr Powell estimated about twenty per cent of schools in England and Wales had such a water fountain. But, he said, there had never been a report of any accident involving one, nor any complaint during this period. 

The judgment
11.	In a short extempore judgment, the judge said in his opinion, the underside of the water fountain which he had examined was sharp. He recited in summary form some of the evidence he had heard, including from Mr Jones and Miss Harrison. He said he was forced to the conclusion that they had not properly considered the risk of harm, relying to an extent on internet advertisements promoting the goods of manufacturers. He said Miss Harrison seems to have relied heavily on Mr Jones, and neither considered what risk the water fountain might pose to children. There was a distinct possibility that children might skylark around, and could easily trip and cut their heads against the underside of the water fountain. He said he failed to see that either Mr Jones or Miss Harrison had actually carried out a properly considered risk assessment and thus he was forced to conclude the defendant was liable in damages. Given the claimant’s age at the date of the accident, he made no finding of contributory negligence. 
Discussion and grounds of appeal 
12.	I regret to say in my view the judge failed either to identify or resolve the legal issues which required determination. He did not mention the Act at all or identify or apply the common duty prescribed by section 2 of the Act to the facts. Instead, it seems to me the judge proceeded on the flawed basis that once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment. 
13.	Although the amended grounds of appeal sought to grapple with a number of other matters, the appeal before us focused on the failures I have mentioned. Mr O’Donnell for the appellant also argued that it is important when considering whether the duty prescribed by section 2 of the Act has been complied with to emphasise that schools cannot be a hazard free zone. 
14.	Mr Sharghy for the respondent submitted the judge must have had in mind the correct legal test, and applied it. I do not accept that submission. In the part of the judgment Mr Sharghy relied on, the judge referred as I have said to the wrong test, the possibility of harm, rather than the reasonable foreseeability of harm, with reference to facts other than those which arose in this case (that children might trip up and cut their heads on the underside of the water fountain while larking around).  
15.	This court has available to it the material which was before the judge, and in the circumstances, in my view this is not a case which should be remitted to the court below but should be looked at by this court afresh.  
16.	The relevant parts of the Act provide as follows: 
“1. Preliminary
(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them… 
2. Extent of occupier’s ordinary duty
(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. 
(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. 
“(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases— 
(a) an occupier must be prepared for children to be less careful than adults…”

17.	The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around. 
18.	In my view the answer to that question is yes. The water fountain was reasonably safe, or putting it another way, the evidence did not establish that it was not. This court looked at and felt the underside edge of the water fountain.  I do not think it can be described as sharp, let alone extremely sharp. It was not possible for example to cut a finger by pressing on it. But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children. Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.  
19.	It is of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen. This was not a case where the appellant was liable in law for his injury and in my opinion the appeal must therefore be allowed.
Lord Justice McFarlane:
20.	I agree. 
Master of the Rolls: 
21.	I also agree.