#15450 - Opinion On Liability Quantum Tort - BPC Opinion

RE: JASON CONNELL

__________________________________________

OPINION ON LIABILITY AND QUANTUM

__________________________________________

INTRODUCTORY MATTERS

1. I am instructed to advise on a case involving personal injury sustained by a child, Jason Connell, on a construction site. My specific instructions are to offer an opinion on the potential defendants to this proposed action, the relevant cause(s) of action and, to quantify the claim in terms of pain, suffering and loss of amenity. I am asked to advise on Jason’s legal status as a child and the potential ramifications this has to his cause(s) of action. Lastly those instructing me seek advice on disclosure of the CCTV footage recorded at the site. The advice given is produced on the evidence I have been provided with and is subject to such evidence requested herein or which becomes available in due course.

BACKGROUND

2. At around 5pm on 4^th July 2013, Jason Connell, 13, and his brother, 15, kicked their football over the wall of a construction site known as ‘Darlow Ridge’ owned by Barrow Bros Builders (“BBB”), which bordered on to Paradise Park in Darlow. Jason entered the site by a hole in the steel fence, which was some 5m high, in order to retrieve the ball but was unfortunately set upon by an Alsatian guard dog on the premises. His attempts to distract the dog with a stick were unsuccessful and he was bitten on the hand. The dog was eventually called off by the command of a security guard employed by ‘Connaught Security’ (“Connaught”), the security agency at the site subcontracted by BBB. CCTV footage of the event was recorded by the site’s cameras. BBB allege that there were warning signs displayed on the fences, namely 40cm x 50cm boards reading ‘DANGER KEEP OUT’, however Jason and his brother state that they saw no signs in the vicinity to the hole in the fence or at all.

POTENTIAL DEFENDANTS

3. As shall be seen from discussion pertaining to the causes of action below, those instructing me have multiple prospective avenues to pursue. There are 2 potential defendants and 4 distinct causes of action in this case which can be divided as such:

1. A claim against BBB under the Occupier’s Liability Act;

2. A claim against Connaught under the Animals Act 1971 (the appropriate provisions of which are discussed below);

3. A claim against Connaught in negligence;

4. Criminal proceedings against Connaught under the Guard Dogs Act 1975, s.1.

CAUSE(S) OF ACTION

BBB’s liability under the Occupier’s Act 1957 and 1984

4. The law of Occupier’s liability makes a critical distinction between visitors and non-visitors of land: visitors are afforded a high level of protection under the above named Act, whereas non-visitors operate under the Occupier’s Act 1984 which affords a very minimal degree of protection, and indeed it is my understanding that no adult has successfully sued under it to date. For that reason I would recommend those instructing me to at least attempt to assert a right as a visitor under the Occupier’s Act 1957 as it is far more generous to claimants and, in my opinion, arguable on the facts.

5. Firstly, for duties to be made out under both Acts it must be established that the dog formed a part of the land in the sense that the dog’s presence could be described as part of the ‘state of the premises’. The problem arises otherwise that the dog is not a part of the occupied land for the purposes of the Act (see Revill v Newberry) and defined under Occupier’s Liability Act, s.3(a) (which also applies to the 1984 Act). A related issue to this is the concept of ‘use of land’, which acts to free a defendant from liability if it is the claimant’s use of their land which renders the injury rather than the state of it itself (see Tomlinson v Congleton Borough Council). Here, BBB are alleging that Jason ‘taunted’ the dog and that he therefore encouraged the injury himself. The CCTV footage will dispose of this point and should be requested in accordance with the procedure outlined at paragraph 26 below.

6. Taking the 1957 Act first, the strongest line of argument would revolve around the so-called doctrine of allurement which applies to children under 15. It could be argued that Jason was ‘allured’ by the hole in the fence which he states looked intentional and as if someone had prised it open. Mr. Connell’s statement that Jason “assumed it was OK for them to enter” is indicative of this. However it is a point contested by BBB in their letter of 23^rd September 2015 who allege that Jason must have deliberately forced the fencing apart to gain entry. Any evidence which goes to refute this should be obtained: witness statements from local residents including, in particular, any photographs they may have of the fencing’s condition (perhaps in the background of photographs taken at the park). In this way it could be described as a dangerous but attractive element of the land akin to the old boat left on council land in Jolley v Sutton. The enhanced duty of care owed to children by virtue of s.2(3)(a) could also be emphasised, which requires occupiers to prepare for children to be less careful than adults. However the issue is that the football was not an ‘attractive’ object for the purposes of the doctrine as it belonged to Jason himself and not to the land. This, unfortunately, may well prove a sticking point and for that reason it is probably a risky argument to run. Taking into account the modern court’s somewhat deflated protectionism of children, my advice would be that it is probably no more than 25% likely on the facts.

7. Therefore a more solid if not narrower duty is found in s.1 of the Occupier’s Act 1984. Those instructing me must satisfy the three criteria under s.1(3) of the Act, namely that BBB knew or should have known (a) of the danger on their land, (b) that children would be in the vicinity, and (c) that it is reasonable for BBB to offer some protection to such children. Criterion (a) is easily established as, by reference to BBB’s letter of 23^rd September 2015, they were aware of the dogs kept at the premises and seem to have consented to their use by Connaught.

8. The vicinity principle (b) was explained in Donoghue v Folkstone Properties as whether or not it would have been reasonably foreseeable to the occupier that the claimant would be in the vicinity of danger. Here, the crucial evidence of vicinity is the physical location of the construction site. Mr. Connell in his statement writes that the site backs onto a local park, ‘Paradise Park’, and it is no leap of logic to say that parks, by their nature, attract children. It is therefore reasonably foreseeable that the danger which they kept on their land was in proximity with the children at the park. Those instructing me might look to find out the distance in metres between the said park and the construction site, and produce some photographs if they expose proximity.

9. The final requirement (c) is a wide provision and affords the courts a discretion which they have generally used to restrict liability for non-visitors. However Jason’s youth is a very relevant factor: in Platt v Liverpool County Council the Court found that children who had climbed under a fence to explore a derelict building owned by the Defendant Council were owed a duty under the Act (however it was found that the duty had not been breached by virtue of the Council’s reasonable steps to protect non-visitors, addressed below). Moreover, it is arguable that BBB should have reasonably foreseen that balls and other items might get over their fences if they were not high enough because of the proximity with the park, and that children would be likely to try to retrieve them in such an event. It would therefore be reasonable to expect them to protect against this eventuality. However the largest hurdle with regards subsection (c) is the Cummings v Granger (1997) principle, which states that deterrent dangers (i.e. those aimed at keeping out non-visitors) will not generally give rise to liability for non-visitors. However, the fact that this construction site was so close to an area where children played might by persuasive in making out BBB’s reasonable duty to protect.

10. In terms of defences, if evidence is found which reveals forced entry, this would open Jason up to a potential counterclaim under the Law Reform (Contributory Negligence) Act 1945, s.1. The evidence which I have recommended should insulate Jason in this respect.

11. Lastly, those instructing me must consider s.5 of the 1984 Act which provides for warning signs and reasonable steps to discourage non-visitors. It provides that “any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk”. My advice at paragraph 6 is reiterated regarding evidence about the hole in the fence. BBB will seek to suggest that the fencing was secure and well-maintained, which would help them avoid liability if it were to be proven. Jason and Mr. Connell are clear in that the boys did not see any signs on approach to the hole in the fence or at all. This is a crucial allegation and those instructing me should photograph the fence as soon as possible, assuming it has not since been signposted, and they should measure the distances between warning signs if any are found. BBB allege firmly in their letter of 23^rd September 2015 that signs reading ‘DANGER KEEP OUT’ in large black letters were posted at 10m intervals...