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Ingenuit y of children could be expensive

MATERIALSWith more children on the streets during the summer holidays extra care must be taken to ensure sites are secure, writes James Bell

WITH THE summer holiday season about to start, another case about minors and building sites seems appropriate. And this case also identifies one of risks of litigation - that of the trial judge making some fundamental errors.

These errors were highlighted when a case (Gabriel v Kirklees Metropolitan Council) went to the Court of Appeal in March 2004.

In this case the judge summed up in just two and a half pages of text and missed many key factual points. She also failed to consider at least three previous cases that would have helped resolve the legal arguments.

The time and expense for everyone concerned show why negotiated settlements are often preferable to expensive litigation.

In all claims the claimant needs to prove negligence - did the action fall below the usual standard of care?

The claimant also needs to prove that the negligence was the cause of the injury and this includes looking at whether it was reasonably foreseeable that the claimant was likely to be injured.The issue of forseeability was a crucial one here.

In July 1997 a six-year-old boy, Tashan Gabriel, was walking past a building site in Huddersfield when a stone, thrown by another child playing on the site, hit him in the left eye, causing serious injury.

As the site was owned by Kirklees Metropolitan Council, Tashan claimed damages from the council.The council was undertaking demolition work on the site. In its defence it admitted that work had begun on June 24, 1997, although little work was actually undertaken until July 1.

At the time of the incident it was alleged that the whole area was covered in rubble, including mud, bricks, stones and glass.

The council admitted that for the first week of July the area was in a partially excavated condition and may have included rubble.

Lawyers for the claimant alleged that the site, surrounded by residential accommodation, was used by local children as a play area.

The council admitted the site was in the middle of a housing estate and that no perimeter fence had been erected. But it said that it had been advised by the police not to erect a fence because: 'It was considered by the police that children in the area would climb the fence and in turn would run the risk of falling and hurting themselves.'

This case took a long time to come to court; legal proceedings weren't issued until 2002.

At the trial the claimant relied on no statutory regulations, only negligence - in other words, that the council owed a general duty of care to Tashan.This was because it was clear that the claimant was not on the site at the time he was injured.

This negligence was the failure to fence the site, to prevent the land from being used as a play area or to make it unattractive to children.

In denying negligence the council contended that it took all reasonably practicable steps to avoid injury. At trial, the council elected not to call any evidence to support its defence.

But the trial judge still dismissed Tashan's claim on the grounds that the risk to him had not been foreseeable and that the council therefore owed Tashan no duty of care.

Tashan's lawyers appealed, citing the House of Lords'decisions in two cases concerning damage caused to property as a result of children setting fire to derelict buildings next door.

In those cases the judges had identified special circumstances in which a defendant may be liable for damage caused by the deliberate wrongdoing of a third party.Two of them founded the claimant's appeal points:

nWhere a defendant negligently permits or causes a state of danger to be created on his land which may be exploited by a third party and nWhere a defendant knows or has the means of knowledge that intruders may trespass onto his land and create a risk of damage to others.

In Tashan's case a number of errors by the trial judge meant it was not possible from the judgment to conclude whether Tashan had in fact succeeded in his argument.

The judge had made no relevant findings of fact: she did not describe the site in relation to the surrounding area; she gave no dimensions of it nor any description of its general condition or the nature and extent to which rubble had accumulated.

The Court of Appeal noted that the judge had made no reference to Lord Hoffmann's crucial remark (in the very recent case of Jolley v Sutton London Borough Council) that childrens''ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated' Jolley was the case I wrote about last year, in which young children were injured by a derelict boat left on council property for several weeks.

Overall, the Court of Appeal was highly critical of the judge, who had failed to ask four very basic questions:

nwhether it was reasonably foreseeable that children would go onto the construction site;

nwhether, while on the site, it was reasonably foreseeable that the children would play there;

nwhether it was reasonably foreseeable that, in playing there, they would throw whatever came to hand;

nwhether in playing with the material on the site it was reasonably foreseeable that they might cause injury to those passing by on the pavement.

Because of the judge's numerous errors, the only way to resolve the case was to order a retrial with a new judge - a huge disappointment bearing in mind the seven years it took for the case to get to trial. Not surprisingly, both parties were strongly advised to negotiate a settlement.