Schools, grass banks and the Occupiers’ Liability Act 1957

Many secondary schools, particularly in more rural areas, will have outdoor play areas connected by a framework of paths traversing grassed areas. For various reasons, pupils will not always keep to these paths and will venture onto grassed areas that could be slippery and cause pupils to fall.

In the recent case of OW (a minor) v Merthyr Tydfil County Borough Council, in which Dolmans represented the Defendant Local Authority, the Court was asked to adjudicate in such a matter.

Background and allegations

The Claimant was a pupil at a secondary school controlled by the Defendant Local Authority.

Through his Litigation Friend and father, the Claimant alleged that he was proceeding with friends along a path within the school grounds when he fell on the adjacent grass verge which was poorly maintained, thereby sustaining personal injuries. The Claimant alleged that both the path and the grass verge were muddy, that he was running after his friends and that he was effectively forced onto the adjacent grass verge as the path was busy.

The Claimant alleged that he landed on a defective and sunken edging stone between the path and the grass verge within the immediate vicinity of his alleged accident.

As a result of his alleged fall, the Claimant sustained personal injuries.

The Claimant alleged that the Defendant Local Authority was negligent and/or in breach of Section 2 of the Occupiers’ Liability Act 1957, having allegedly failed to take any reasonable care to ensure that the Claimant was reasonably safe when using the premises and exposing the Claimant to a foreseeable risk.

Claimant’s evidence

The Claimant’s evidence was somewhat vague. He accepted that he was running after his friends and slipped on mud. The Claimant appeared to submit that the only thing in the vicinity that must have caused him to initially lose his balance was the sunken edging stone, but that he also slipped as a result of the adjacent muddy grass verge.

The Claimant’s father returned to school to take various photographs along the relevant path, but was not present at the time of the Claimant’s alleged accident.

None of the Claimant’s friends gave evidence.

The Claimant averred that the Defendant Local Authority should have taken measures to make the relevant location safe, such as widening the path, erecting warning signs and a fence to keep pupils off the grass verge.

CCTV

The location of the Claimant’s alleged accident was covered by CCTV. Unfortunately, the relevant CCTV footage of the Claimant’s alleged accident had become corrupted and was no longer available. However, two of the Defendant Local Authority’s witnesses had both viewed the CCTV footage before the same had become corrupted and had taken a screenshot, although this showed only the aftermath of the Claimant’s alleged accident and not the alleged fall.

The Defendant Local Authority’s witnesses were, however, able to mark the exact location of the Claimant’s fall on this screenshot, as was seen when they viewed the CCTV footage. This was not at the same location alleged by the Claimant.

Defence

The Defendant Local Authority had in place an appropriate system, including a reactive system, for dealing with any alleged defects or issues within the school premises. Following investigation of the Claimant’s alleged accident however, no defects were noted at the location of the same and no remedial works were required as a result of the Claimant’s alleged accident.

Although subsequent refurbishment works were undertaken in the area, such works were to move a fire assembly point and were totally unrelated to the Claimant’s alleged accident.

The Defendant Local Authority averred that appropriate supervision was provided, when required, and that it had no record of any complaints or other accidents relating to the location of the Claimant’s alleged accident during the 12 month period prior to the date of the Claimant’s alleged accident.

As for the Claimant’s suggestion that a fence could have been erected between the path and the grass verge to prevent pupils accessing the grass verge, the Defendant Local Authority responded that it would not have been safe to do so, given the proximity of several fire exits from the adjacent building.

The Defendant Local Authority maintained that it had taken all reasonable measures to ensure that pupils at the school were kept reasonably safe.

The Defendant Local Authority argued that there was a high degree of contributory negligence on the Claimant’s part.

Defendant local authority’s evidence

The Defendant Local Authority was aware that pupils used the grass verge.

One of the Defendant Local Authority’s witnesses even recalled using the path and the grass verge when he was a pupil at the school many years previously without any issues whatsoever.

The Defendant Local Authority was aware that the grass verge could become muddy and slippery, but did not consider the grass verge to present a real source of danger.

The path was wide enough for three pupils to pass each other, without needing to use the grass verge anyway.

Likewise, the Defendant Local Authority did not consider the sunken edging stone to be a particular and/or real source of danger. It did not require any repair.

The Defendant Local Authority undertook health and safety inspections prior to the Claimant’s alleged accident, when all external walkways were found to be in good repair. As already referred to above, the relevant location was inspected following the Claimant’s alleged accident, when no issues were noted and no repairs required.

Judgment

The Trial Judge held that the Defendant Local Authority did not owe a duty to maintain the relevant location in perfect condition and reiterated that the Claimant needed to prove that there was a real source of danger, albeit that it was accepted that children are less aware of any such dangers.

It was accepted that the exact circumstances and cause of the Claimant’s alleged accident were somewhat vague and that the Trial Judge needed to grasp this initially.

The Trial Judge held that the Claimant’s alleged accident occurred within a matter or seconds, that he was running at some speed and focusing on the friend whom he was chasing. Although the Trial Judge was satisfied that the Claimant was not being dishonest, he found that the Claimant’s evidence was hazy and that he was trying his best to recall events. The Claimant had focused somewhat on the sunken edging stone, but only after reconstruction of the circumstances of his alleged accident some time following the same.

Having considered all of the evidence however, the Trial Judge found that the Claimant’s alleged accident had occurred on the grass verge and that he would focus upon this in his Judgment. Indeed, this was also in keeping with the alleged CCTV footage.

Whilst the Trial Judge accepted that the Defendant Local Authority was aware that pupils used the grass verge and had a duty to assess the risk to children using the area, it was held that this did not present a real source of danger in this particular matter.

The Trial Judge found that whilst mud can be slippery, this was an everyday hazard seen in all walks of life. The Claimant had not, therefore, established that the Defendant Local Authority had failed to take reasonable steps to ensure the reasonable safety of pupils. It was held that the Defendant Local Authority cannot be expected to police secondary schools at all times and in all places.

As for the Claimant’s suggested measures that the Defendant Local Authority could arguably have put in place, the Trial Judge held that a warning sign would not have told the Claimant anything that he did not already know and that there was no duty upon the Defendant Local Authority to widen the path. The Trial Judge stated that unless the Defendant Local Authority covered all grassed areas within the school grounds, there was always a chance that pupils would choose to walk on the grass anyway.

The Trial Judge held that the Defendant Local Authority had a duty to keep visitors reasonably safe and had complied with this duty by constructing a path wide enough for three pupils to pass.

Notwithstanding the above, the Trial Judge held that the Claimant was the author of his own misfortune and that the Defendant Local Authority could not prevent all accidents. It was held that the Claimant had chosen to leave the tarmacadam path and decided to run on the muddy grass verge, wearing normal trainers and being aware that he could slip. Had he used the path, then the alleged accident would not have occurred.

As such, the Claimant’s claim was dismissed.

Comment

Somewhat unusually for a case involving accidents in schools, the Trial Judge was prepared in this matter to go beyond any finding of contributory negligence and find that the Claimant was the author of his own misfortune. The Claimant was, however, a secondary school pupil and this particular finding might, of course, have been somewhat different had the alleged accident occurred in a primary school.

Notwithstanding the above and although each case will, of course, be decided upon its own circumstances, the Trial Judge in this particular matter was satisfied that there were no additional measures that the Defendant Local Authority needed to take, as suggested by the Claimant, and that the Defendant Local Authority had already complied with its duty by constructing an appropriate path accordingly.

Tom Danter is an Associate at Dolmans Solicitors.