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

An 11-year-old boy climbed the outside of a fire escape at hospital premises, fell and suffered serious injuries. The Court of Appeal held the NHS Trust not liable under the Occupiers' Liability Act 1984, finding the danger arose from the boy's own activity rather than from the state of the premises.

Facts

Martyn Keown, aged 11, climbed the outside framework of an external fire escape at River House, part of Gulson Hospital in Coventry. The fire escape had cross-bars on its exterior which made it climbable. The hospital grounds were known to be used by children for play. On 8 October 1995, while showing off to his sister and friends, Mr Keown fell from approximately 30 feet, fracturing his arm and suffering significant brain injury. The claimant admitted he knew climbing the fire escape was dangerous and that he should not have been doing it.

Trial Proceedings

The Recorder at Nuneaton County Court found the Trust liable under the Occupiers’ Liability Act 1984 but held the claimant two-thirds contributorily negligent. The Trust appealed.

Issues

The central issue was whether the claimant suffered injury by reason of any danger due to the state of the premises within the meaning of section 1(1)(a) of the Occupiers’ Liability Act 1984, or whether the danger arose from the claimant’s own activity in climbing the fire escape.

Judgment

The Court of Appeal allowed the appeal and set aside the trial judge’s order. Lord Justice Longmore, delivering the main judgment, held that the fire escape was not itself dangerous. The risk arose not from the state of the premises but from what Mr Keown chose to do.

Lord Justice Longmore relied upon Donoghue v Folkestone Properties Ltd and Tomlinson v Congleton Borough Council, emphasising that premises which are not inherently dangerous do not become so merely because someone chooses to use them for a dangerous activity. While premises dangerous for adults might not be dangerous for children and vice versa, Mr Keown at age 11 appreciated that climbing was dangerous and knew he should not do it. He therefore could not claim the risk arose from the state of the premises.

Mr Justice Lewison agreed, stating that the threshold question required showing that premises were inherently dangerous. There was nothing inherently dangerous about the fire escape – no physical defect, disrepair or structural deficiency, and no hidden danger. The only danger arose from the claimant’s own activity.

Obiter Comments

Lord Justice Longmore expressed tentative views that even if the threshold were met, it would not be reasonable to expect an NHS Trust to offer protection from the risk of falling from normal fire escapes, noting that requiring such protection would extend to drain pipes, balconies, roofs, windows and trees. He observed that NHS resources should be directed to patient care rather than catering for children climbing where they should not go.

Implications

This case clarifies the scope of occupiers’ liability to trespassers under the 1984 Act. The decision confirms that the Act does not impose duties on occupiers to protect trespassers who engage in dangerous activities on premises that are not inherently dangerous. Occupiers need not ‘child-proof’ buildings merely because children might choose to climb them. The age of the trespasser will not usually affect whether danger is attributable to the state of premises, though it may affect the content of any duty that does arise. The case emphasises that allurement or attraction to children does not convert safe premises into dangerous ones.

Verdict: Appeal allowed. The trial judge’s order was set aside and the defendant NHS Trust was not liable to the claimant under the Occupiers’ Liability Act 1984.

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