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Mind the Gap

Is an unguarded school radiator inherently unsafe in an environment in which young children are present? That is the question we have recently been asked to advise on.

Section 2 of the Occupier's Liability Act 1957 places a duty on the Defendant to keep a visitor reasonably safe.

A child can be tempted to meddle with a fitting or item, and that action might risk injury. In the past the Courts have found that the Occupier has a duty to remove or take steps to ensure that the "allurement" did not cause a danger to a child (see Sutton v. Bootle Corporation [1947] QB359 and Jolly and Sutton LBC [2000] 1 WLR 1082.

In the recent past, however, Court decisions appear to restrict the extent of such a duty in favour of Occupiers. In Richards v. Bromley LBC [2012] EWCA Civ 1476, a child sustained injury as a result of a self closing mechanism on a door. There had been a similar incident causing less serious injury shortly before this incident. Should the School have adapted the door to avoid the second accident? The Court held that the school was entitled to regard the earlier incident as unusual and not very serious and therefore it had not duty to take specific steps to avoid a further incident taking place.

In the case of West Sussex County Council v. Pearce [2014] PIQR P5 a court found that the possibility that an incident might occur was sufficient to give rise to a finding of liability but this was overturned by the Court of Appeal, who made plain that the question which had to be addressed was whether as a matter of objective fact visitors to a school were reasonably safe in using the premises (specifically a water fountain). Lord Justice Sharp said "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 that 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."

One would hope that these recent cases support common sense and reassures school managers that a school cannot have an obligation to take steps to prevent accident in respect of all the numerous ways in which children can hurt themselves. Yet will a Judge at trial be bold enough to look the parents in the eye and find that their 5 year old was the author of his own misfortune?