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Law Bulletin - June 2005

Liability

Duty of care of general labourer

The claimant, James, asked his neighbour, Butler, a general labourer, to help put up a conservatory. He paid him for his help. Butler tightened a screw of a piece of the structure with his finger so as to secure it temporarily while he went to get a screwdriver. In the meantime the part of the structure fell and struck James in the eye.

At first instance, it was held the duty of care was for the standard of a general labourer and that it was reasonable, on those standards, for Butler to think that what he had done was safe – he was not an experienced contractor. The Court of Appeal said the standard of care should be objective for the task not the skill of the workman – tightening a screw by hand was well within the capability of a handyman.

There was a breach of duty of care in not securing the screw properly.

James -v- Butler, CA, Civ Div, 17 May 2005

Child trespassers – Occupiers Liability Act 1984

i) A 12-year-old boy climbed on a school roof and fell through a fragile skylight. The school had known of previous instances of access to the roof where children sometimes gathered to play.

Applying the relevant sections of the 1984 Act, the school had breached its duty as:

a) “it was aware of the danger or had reasonable grounds to believe it existed” – the roof was inherently dangerous and the fragile skylight made it more so

b) “knew or had reasonable grounds to believe the other person was in the vicinity of the danger concerned….. ( whether or not he had lawful authority)” – as above, children had been known  to access the property
c) “the risk was one against which, in all the circumstances of the case, he should reasonably be expected to offer some protection” – here the High Court held a reasonable and affordable level of care to children would have been to risk-assess the area, fence off the area at the top of the stairs and to make the skylight robust.

These were breaches of the duty of care owed to a child but a relatively high (for children) 50 per cent contributory negligence was applied. The Judge stated he would not have found for an adult in the same situation – applying Tomlinson -v- Congleton BC 2004 1 AC 46.

A useful quote for child cases “occupiers should never underestimate the power of children to harm themselves through mischief” ( House of Lords: Jolley -v- Sutton LBC (2000), 1WLR 1082.

Young -v- Kent County Council, 14 March 2005, High Court

ii) In a public law case it has been held that – for the purposes of section 3 of the Health and Safety of Work Act 1974 – “if an adult swimmer with knowledge of the risks of unsupervised swimming had a mishap, the local authority would not be liable as it was the swimmer’s choice rather than the authority’s permission to use the pool that was the ultimate cause.”

This arose from a successful appeal against an authority’s refusal to allow the public to swim unsupervised in the ponds of Hampstead Heath.

Regina (Hampstead Heath Winter Swimming Club and another) -v- Corporation of London, 26 April 2005.