Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39

An 11-year-old boy fell from a fire escape at a hospital while trespassing. The Court of Appeal held the hospital was not liable, as the injury resulted from the boy's dangerous activity, not a defect in the premises.

Facts

The claimant, an 11-year-old boy, climbed the underside of an external steel fire escape on the grounds of a hospital owned and occupied by the defendant, the Coventry Healthcare NHS Trust. He was attempting to show off to his friends. While climbing, he fell from a height of over 30 feet and suffered significant brain damage and brachial plexus injuries. The fire escape itself was structurally sound and not defective. There was evidence that children, including the claimant, were known to play in the grounds, and the Trust had previously taken some measures to deter them.

Issues

The central legal issue was whether the NHS Trust owed a duty of care to the claimant, a known trespasser, under the Occupiers’ Liability Act 1984. Specifically, the court had to determine:

1. Whether the risk of injury was one against which, in all the circumstances, the occupier could reasonably be expected to offer the claimant some protection, as required by s.1(3)(c) of the 1984 Act.
2. Whether the danger arose from the ‘state of the premises or of things done or omitted to be done on them’ as per s.1(1)(a) of the Act, or whether it arose from the claimant’s own actions.

Judgment

The Court of Appeal, overturning the trial judge’s decision, allowed the Trust’s appeal and held that it was not liable. The leading judgment was given by Lewison J.

Reasoning of the Court

The court’s reasoning focused on the distinction between dangers arising from the state of the premises and dangers arising from the activities of a trespasser. Lewison J concluded that the danger was not due to the state of the premises, which were not inherently dangerous. The fire escape was a normal, non-defective structure.

In my judgment the risk was not one which arose from the state of the premises. The fire escape was a perfectly sound and proper fire escape. It was not in any way defective. The risk of injury arose from what the claimant chose to do.

The court drew heavily on the House of Lords’ decision in Tomlinson v Congleton Borough Council [2004] 1 AC 46, which established that an occupier is not liable for injuries sustained by a claimant who willingly engages in a risky activity. A simple analogy was drawn with a tree; a person is not liable just because a child might climb a tree on their land and fall.

Lewison J directly addressed the requirements of the Occupiers’ Liability Act 1984, stating that the criteria under section 1(3) were not met. He argued that it would be unreasonable to expect an occupier to protect against such obvious risks created by the claimant’s own misadventure.

It seems to me that to hold the Trust liable in this case would be to go well beyond the existing law. It would be to impose on landowners a duty to prevent people from climbing on their property, where climbing is a dangerous activity.

Furthermore, the court considered the social utility of the fire escape and the impracticality of preventing such activities without disproportionate measures.

It would, in my judgment, be a sorry state of affairs if the law required landowners to erect what would have to be unsightly fences to prevent people from climbing on things which were not in themselves dangerous, but from which they might fall and hurt themselves. The social utility of the fire escape is a powerful argument against the imposition of a duty.

Implications

The decision in Keown v Coventry Healthcare NHS Trust is significant for clarifying the scope of an occupier’s duty to trespassers under the 1984 Act. It reinforces the principle from Tomlinson that the law does not impose a duty to protect individuals from risks that they choose to run. The case firmly distinguishes between liability arising from the ‘state of the premises’ (e.g., a rotten staircase) and injuries resulting from a claimant’s own dangerous activities (e.g., climbing a perfectly sound structure). This limits the potential liability of occupiers, particularly public bodies, by confirming that they are not required to guard against every conceivable risk created by a trespasser’s own actions.

Verdict: Appeal allowed; the claimant’s claim was dismissed.

Source: Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39