Kidd (A Child) v Portsmouth City Council [2004] EWCA Civ 46

Case No B3/2003/1860[2004] EWCA Civ 46
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE IAIN HUGHES QC)
Venue Royal Courts of JusticeDate Wednesday, 14 January 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
LORD JUSTICE DYSON
LORD JUSTICE JACOB
Between
JADE LAUREN KIDDAppellant(A Child, by Deborah Lemin, her Litigation Friend)Appellant-v-
Between
PORTSMOUTH CITY COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JOHN FOY QC AND MR EDWIN BUCKETT (instructed by Warner Goodman & Streat) appeared for AppellantMR GM BEEB QC AND MR B COMPTON (instructed by Portsmouth City Council, Legal Services) appeared for Respondent
J U D G M E N T
[1]This is an appeal by the claimant, Jade Kidd, from a judgment of His Honour Judge Hughes QC, given in the Portsmouth County Court, in which he dismissed her personal injury claim. The claim arose out of an accident which happened on 11th May 2001 (a few days after the claimant's 10th birthday) in a garden which formed part of the defendant Council's care home in Fifth Street, Fratton Park, which is an urban residential area of Portsmouth.[2]The Council had provided the garden for use by the local community. It was described as a "Community Garden". On the day of the accident the claimant had been playing in the garden with friends. As she ran down a path, towards the gate which led to the street, she tripped and fell on to the gate's catch. Unfortunately, her left eye was injured so badly that she has lost all sight in it.[3]On behalf of the claimant it was alleged that the Council was in breach of their admitted duty as occupiers of the garden because the path was unsafe for children. Like the other paths in the garden, it was made of compacted hoggin, a mixture of clay and crushed flint, which left some smallish stones loose on its surface. The claimant's case was that this material was unsuitable for the construction of a path where children could be expected to play; alternatively, that the surface had not been properly compacted. The judge rejected both these allegations. He also rejected a further allegation, which is no longer pursued, that the gate should have been fitted with a self-closing device.[4]There was evidence before the judge about how the surfaces of what are called "designated children's play areas" -- what I would call proper playgrounds, such as one sees in urban parks -- should be treated: soft surfaces round swings, slides and climbing frames where children are liable to drop, and tarmac or flagstones in the surrounding fenced areas where children will inevitably run around.[5]This was not such a playground.

The judge described it as follows:

"The garden has no play equipment at all. The evidence before me indicates that although the garden was not large in area, it contained pleasant areas of lawn, a small central mound and a tree with a low log surround and paths. By a notice, all ball games, roller skating and skateboarding were prohibited. Children would therefore play in the garden in the same way that children would play in a park, in the road or in their own rear gardens."
It was not, as the judge said, a large area. It was enclosed by a fence. The evidence was that it was used a lot by children living in this residential area, but also that it was used by adults, including people visiting the care home which contained a day centre.[6]The bit of the path where the claimant tripped had been laid about three months before the accident. The instructions to the builders had been to match this new bit of path with the existing paths. After the new bit had been laid, it had been inspected by the Council's contract supervisor, Mr Rees, who found it to be satisfactory and, particularly, that the hoggin had been satisfactorily compacted. Three days after the accident, coloured photographs of the path were taken by the Council's health and safety officer, Mr Briggs, who found no tripping hazard in the vicinity of the gate.[7]Although her earlier statements had not said how she tripped, the judge proceeded on the Council's admission that the claimant had tripped on a stone on the path as she approached the gate. He proceeded on the basis that the garden was not a proper playground but a community garden available to, and used by, all. It followed, he said, that he could not apply the special standards appropriate to playgrounds simply because children happened to play there. He said:
"Were I to do so, I would have to apply such standards to any area where children were known to play. This would include, for example, the rear gardens of friends and neighbours in Fifth Street."
[8]After considering the evidence, including concessions made by Mr Rees in cross-examination that hoggin was unsuitable for use in a proper playground, to which I will have to refer in a little more detail later in this judgment,

the judge said:

"Mr Rees told me that hoggin is used in other recreational areas such as Queen Elizabeth Country Park (north of Portsmouth), in cemeteries and, to a limited extent, in some schools. Had the garden been intended as a play area then hoggin would not have been used. In view of all the evidence before me I find as a fact that the path was constructed of suitable material."
He then went on to consider whether the path had been properly constructed. Here the judge accepted the evidence of Mr Rees and Mr Briggs, to which I have referred, and concluded that the path did not require further compaction or rolling at the time of the accident.[9]Mr Heseltine, a jointly instructed expert in playground safety, had not criticised the use of hoggin in his report, but had said that the path should have been consolidated firmly by additional rolling. However, he had not inspected the path. His view was based upon examination of black and white copies of Mr Briggs's colour photographs. The judge said that these gave the misleading impression that the entire surface was loose. This was not the case as the colour photographs made clear. The judge, therefore, did not accept Mr Heseltine's evidence on this point.[10]On this appeal, Mr Foy QC, who now appears for the claimant, complains that the judge's approach to the standard of care to be expected of the Council was too rigid: either the garden was a proper playground, in which case a special standard of care was required, or it was simply an area where children were known to play, where no particular care needed to be taken for children. It had never been suggested that the garden was a proper playground. The judge should have considered what standard of care was appropriate for this garden, having regard to the fact that it was foreseeable that children of the claimant's age would be left to play on their own there. This meant that a higher standard of care was required than that applicable to other areas where children might be expected to play, such as countryside parks.[11]Mr Foy then submits that having adopted too rigid an approach to the standard of care required of the Council, the judge compounded his error by failing to take account of a number of factors which supported the argument that the surface was unsuitable. These are listed in the claimant's skeleton argument as follows: that the garden was secure because it was fenced and completely enclosed; that the area was urban and surrounded by residential houses, many of which included families with children; that children would often play in the garden; that because the area was fenced it was reasonable to expect children of the claimant's age to play there unsupervised; because there was no play equipment in the garden, children could be expected to play games that involved running; that the Council themselves had positively encouraged children to play in this community garden. Mr Foy further submits that in reaching the conclusions he did, the judge misrepresented the evidence of Mr Heseltine and Mr Rees.[12]Attractively and persuasively though they are put, I do not accept these submissions. I accept that the claimant did not put its case on the basis that this was a proper playground. But the case was put on the basis that the surfaces in this enclosed area, where young children were known to play alone, should have been treated in the same way as the surfaces in a proper playground. In other words, it was said that the paths in the garden should have been tarmac or flagstones, as in a playground. The judge, therefore, had to deal with this contention. I can see nothing in his judgment to show that having rejected it he proceeded on the basis that the Council were not required to have any particular regard to the fact that children played in the garden. His careful judgment, it seems to me, shows that he took the circumstances of this particular case fully into account. These cases are always a question of fact and degree. This was not a proper playground. The use of tarmac might have reduced the risk of children tripping on the paths, but whether it was incumbent on the Council in discharge of their duty as occupiers to do so, was very much a question for the judge to decide on all the evidence, bearing in mind that children were expected to play in this area and that children will be less careful than adults, as the 1957 Act says.[13]So I can see no basis for the suggestion that the judge applied the wrong standard of care to the facts of this case. This conclusion, it seems to me, really disposes of the appeal, because unless it can be shown that the judge applied the wrong standard of care, the way in which he proceeded to consider whether the Council had met that standard cannot be faulted based, as it is, on the judge's clear findings of fact.[14]It is true that the judge did not rehearse the factors which relied on by the claimant in the way Mr Foy did, but if one looks at the whole of the judgment it seems to me that the judge was well aware of those factors. He must also have been aware of the fact that it would have been considerably more expensive (and perhaps less attractive) to surface the paths in this garden with tarmac.[15]I do not accept that the judge misrepresented the evidence of Mr Heseltine. Mr Foy has referred us to paragraphs in his report which he suggests indicate that the judge was wrong to attach any importance to the fact that Mr Heseltine did not say that hoggin was an unsuitable surface. I think the judge was right to make this point particularly as questions were put to him, after he had submitted his report, which were designed to elicit a favourable answer to the claimant about this.[16]So far as Mr Rees is concerned, Mr Foy took us to the transcript of his cross-examination, which, we have to say, was conducted very skilfully by Mr Buckett, who appeared for the claimant at trial. Mr Rees was first asked to accept that hoggin would not have been suitable for the surface of a proper playground. He was then asked questions which were designed to show that the same argument applied to any area where children regularly played. The highlight of Mr Buckett's forensic success can be demonstrated by the following passage in the transcript:
"Q. Does it also follow that although this may not be a children's play area that you would also agree with the point that it is not a safe surface for an area where children regularly play. A. Yes, this type of surface is predominantly used for walking on."
And a little later:
"Q. So, you should never use this surface where children are? A. I certainly wouldn't no."
This was a concession too far. Was he saying that wherever children are, you should not have loose surfaces but laid tarmac? The judge took up this point and Mr Rees resiled from this extreme view, and in doing so made it clear that he was not an expert and was not qualified to say whether the laying of hoggin as opposed to tarmac made this community garden dangerous.[17]Although Mr Rees obviously had considerable experience of laying paths and supervising contracts in which various surfaces had to be laid he was not an expert. It does not seem to me, looking at the whole of his evidence that the judge misrepresented it in a way which undermines the validity of the conclusions which he reached.[18]Mr Foy emphasised the fact that in this case the court was concerned not with a large area where children might be expected to play and run, but with a small enclosed area where the risk is greater than it might be in a country park or some larger area. But the risk of running and tripping is the same whether the area is a large or a small one. At the end of the day, the judge had to ask himself whether it was right that the Council should have been required to lay tarmac instead of hoggin on these paths. He reached an answer which, it seems to me, is unassailable in this court.[19]Like the judge, I feel great sympathy for Jade, who has obviously coped bravely with the terrible consequences of this accident. But legal liability cannot be based on sympathy. I think the judge was right to say that the Council were not legally liable for this accident. I would, therefore, dismiss this appeal.

LORD JUSTICE DYSON: I share the sympathy expressed by my Lord for this most unfortunate accident. But, for the reasons that he gives, I agree that this appeal must be dismissed.

LORD JUSTICE JACOBS: I agree. (Appeal dismissed. Costs in the case.)