Keown v Coventry Healthcare NHS Trust

LORD JUSTICE AULD: This is a renewed application on behalf of the Coventry Health Care NHS Trust ("the Hospital") against the order of Mr Recorder Dooley at Nuneaton County Court on 13th May 2005 in favour of Mr Martin Keown that the Hospital was liable to him, to the extent of one third for breach of its statutory duty as an occupier under section 1 of the Occupiers' Liability Act 1984, ("the 1984 Act") for injuries sustained on the hospital's premises.

The issue before the Recorder was as to liability only. He assessed the Hospital's liability at one third on the basis that Mr Keown was contributorily negligent to the extent of two thirds.

The facts may be shortly stated for the purpose of this application. In October 1995, when Mr Keown was 11 - and some 9 and a half years before the hearing before Mr Recorder Dooley - he climbed up the outside of an external fire-escape of a four storey building owned and occupied by the Hospital. In doing so he fell, suffering serious injuries, including to his head. In evidence he appears to have acknowledged that he had appreciated at the time that what he was doing was dangerous and that he had accepted the risk. It is common ground that Mr Keown was a trespasser and also that the Hospital was, or should have been, aware at the material time that children trespassed on its grounds in the vicinity of this and other external fire-escapes. There was, however, no evidence that it was or should have been aware that children climbed this or any of the fire-escapes, and certainly not from the outside of it as Mr Keown did on this occasion.

The Hospital denied any breach of duty, also alleging volenti, and in the alternative, contributory negligence. The relevant provisions of the 1984 Act are in section 1(1)(a), section 1(3)(a) to (c) and section 1(6). Section 1(1)(a) reads:

Section 1(3) is as follows:

Section 1(6) is in the following terms:

The Recorder made four findings in relation to the application of various of these provisions that Mr Martin Porter, on behalf of Mr Keown, challenges. The Recorder found: first, in paragraphs 34 and 35 of his judgment, that having regard to the potential of the fire-escape as an allurement to children, it was in a defective state so as to constitute "danger due to the state of the premises" within the meaning of section 1(1)(a); second, in paragraph 36 of his judgment, that the hospital was aware of circumstances giving rise to such danger within the meaning of section 1(3)(a) and/or (b); third, in paragraph 40 of his judgment, that the risk, that is of a child, climbing the fire-escape and then falling from it as Mr Keown did, was a risk against which, in all the circumstances, it could reasonably have been expected to offer some protection in the form say of notices or barriers as provided by section 1(3)(c); and fourthly, in paragraph 41 of his judgment, that the hospital could not rely upon the defence of volenti because, in addition to showing appreciation and acceptance by Mr Keown of the danger, it had also to show an express or implied agreement by him, an 11-year old boy, to exempt the hospital from liability.

As to the first of those findings and the first potential ground of appeal, on the issue of "danger due to the state of the premises" under section 1(1)(a), Mr Porter submitted that the evidence showed that the fire-escape was a perfectly ordinary structure in a wholly satisfactory state, in no sense dangerous in itself within the meaning of section 1(1)(a), as distinct from a dangerous activity undertaken by somebody on it. The dangerous state for which section 1(1)(a) provides, submitted Mr Porter, does not depend on the age of the claimant who enters upon the part of the premises in question. He cited in support of that proposition passages from the speech of Lord Hoffmann in Tomlinson v Congleton Borough Council and Anr [2004] 1 AC 46, at page 80 A to B and D and page 85 E to F, as well as a passage from the judgment of Lord Phillips, Master of the Rolls, as he then was, in Donoghue v Folkestone Properties Limited and Anr [2003] QB 1008, at page 1019 D to F.

Mr Porter submitted that the effect of those observations is that, if the premises are in a proper state for the purpose for which they are intended, no duty arises in relation to them under section 1(1)(a). The Recorder's treatment of the matter at paragraphs 34 and 35 of his judgment amounted, Mr Porter contended, to a failure to distinguish between a dangerous state of premises and a dangerous activity that the claimant has chosen to undertake on them.

As to the second finding of the Recorder and the second potential ground of appeal, which concerns the Hospital's awareness of the danger under section 1(3)(a) and/or (b), Mr Porter criticised the Recorder's reasoning at paragraph 36 of his judgment. There is no evidence, submitted Mr Porter, that the Hospital knew or should have known that children climbed the fire-escape or that anyone had, as Mr Keown did here, climbed it on the outside. Therefore, submitted Mr Porter, the Hospital should not be fixed with knowledge of danger under section 1(1)(a) and section 1(3)(a) if it existed, but, in any event, not fixed with knowledge of dangerous activity within section 1(3)(b).

As I have said, the only evidence as to the Hospital's knowledge in the context here was that children trespassed on its grounds in the vicinity of the fire-escape, not that they climbed it and certainly not as Mr Keown did.

As to the third finding of the Recorder and the third potential ground of appeal as to what protection could be expected from the hospital under section 1(3)(c), Mr Porter submitted that this issue was not purely one of fact for the Recorder, but inevitably a matter of policy on which this Court is as well-qualified in the circumstances to form a view as to the Recorder and to disagree with him if it considers it right to do so.

Given the need for positively dangerous action on the part of Mr Keown before the conjunction of that and the fire-escape could expose him to danger, it was neither desirable nor practicable, submitted Mr Porter, to fence the fire-escape; no warning was reasonably required; nor would it have made any difference in the circumstances. Mr Porter tied in to that submission his earlier citations from the speech of Lord Hoffmann in Tomlinson and the judgment of Lord Phillips in Donoghue.

As to the Recorder's fourth finding and the fourth potential ground of appeal going to the issue of volenti, Mr Porter submitted that once the Recorder had found, as he implicitly did in paragraph 41 of his judgment, that Mr Keown had appreciated and accepted the danger, then, as a matter of law, he should have treated Mr Keown as having exempted the hospital from liability. He cited in support of that submission a passage from the judgment of Stuart-Smith LJ in Ratcliff v McConnell and Ors [1999] 1 WLR 670, at page 684, in paragraphs 45 and 47, a case concerning an adult claimant.

Mr Porter also referred the Court to the application of the observation of Stuart-Smith LJ in that case, and the principle for which he, Mr Porter, maintains it is an authority, by Mrs Anne Rafferty QC, as she then was, sitting as a Deputy High Court Judge, to the claimant child of the age of 14 or 15 in Andrew Scott v Associated British Ports, an unreported decision of 18th March 1999.

As Mr Porter observed in the concluding part of his submissions, these are inter-connected provisions which go to the making of this potential appeal, but the Hospital only has to succeed on one of them in order to succeed on the appeal. In my view, the submissions of Mr Porter, succinctly, clearly and persuasively made, do raise substantial points of law on which I take the view the appeal would have a real prospect of success. They certainly require airing before the full Court by way of appeal. For that reason, and for the reasons advanced by him in his submissions that I have attempted to summarise, I would grant permission to appeal.

LORD JUSTICE LLOYD: For the reasons given by my Lord I would also grant permission to appeal in this case.