In this article we review the September 2008 case of Danielle Richbell (a minor) v Oxfordshire County Council, where this firm acted for the Defendant. The case involved an accident at a State school. The key issues raised were as follows:-

1. The extent of an occupier’s duty of care to visitors and, notably, children under the Occupier’s Liability Act 1957;
2. The duty of parents to recognise potential dangers to which their children are subjected on a day-to-day basis.
3. Foreseeability of injury.

The Claim

The Claimant, a seven-year-old pupil, issued a claim, acting through her mother, against the Defendant (the Local Authority employer – effectively, the school), for personal injury sustained to her ring finger whilst at Primary School. The Claimant alleged that her finger was trapped in a toilet door whilst she was standing next to it. It was alleged that the door, operating on a spring loaded closing mechanism, closed slowly then suddenly slammed shut over the last 4 – 6 inches, trapping her finger.

The Law

The Occupier’s Liability Act ("the OLA") places a ‘common duty of care’ on an occupier of premises to all his visitors. (The "occupier" is the party with overall control of the premises, and in the independent sector would be school’s governing body.) This means that an occupier is to take reasonable care in all the circumstances to ensure a visitor is safe in using the relevant premises for the purposes for which he/she is invited or permitted to be there.

The OLA requires an occupier to be prepared for children to be less careful than adults. 

The 1955 High Court decision in Phipps v Rochester Corporation addressed the general principles governing the relationship between an occupier and his visitors. One judge commented as follows:

"His duty is to consider with reasonable care whether there are on his premises, so far as he knows their condition, any dangers that would not be obvious to the persons whom he has permitted to use them…and must assume that the public may include little children"…..

"As a general rule [the occupier] will have discharged his duty towards [the children] if the dangers which they may encounter are only those which are obvious to a guardian or of which he has given a warning comprehensible by a guardian."

The Arguments

The Claimant's arguments

The Claimant contended that the Defendants were in breach of their duty under the OLA due to their failure to ensure the automatic door in question closed safely by putting finger guards in place. The Claimant added the door should have been adjusted so as not to close more quickly in the last 4 – 6 inches. Consequently the Claimant’s position was that permitting slamming constituted negligence.

The Defendant's arguments

We argued, on behalf of the Defendant, that the automatic door closing mechanism was perfectly safe, being a standard fitting in public buildings across the country. There was nothing intrinsically defective about the closing mechanism. We contended the appropriate test was whether the door in question was reasonably safe. The evidence showed the Claimant’s finger was already trapped before the door had begun to travel faster in the last 4 – 6 inches, thus, we argued, her finger would have been trapped in any event. It is for the Claimant to prove that the Defendant is in breach of its duty under the OLA.

The Claimant had placed her fingers within the hinge side of the door and was under the supervision of her mother at the time the accident occurred. It was held in the Phipps case that an occupier is entitled to assume that:

"Parents [will] behave in [a] prudent way and [occupiers] are not obliged to take upon themselves parental duties."

The evidence illustrated that there was no record of an accident such as this having ever occurred previously at the school and, under cross-examination, the Claimant’s witness admitted to the door having closed in this way for as long as she could remember. Over 150 girls used the door every day. Parents were, therefore, aware of how the door operated and, one would hope, aware that placing one’s fingers in the hinges of a door operating in such a way, gave rise to a risk of injury.

Judgement

The Judge decided the case in favour of the Defendant. This was an unhappy accident. Quoting the Phipps case, the Judge noted "...life is not risk free. A child needs to be watched over and it is a parent’s responsibility to do this".

It was for the Claimant to prove either the snapping shut during the last 4 – 6 inches caused the accident, or the door closing more slowly would not have caused the accident. The Defendant submitted that the Claimant’s fingers were already trapped at the stage the door travelled more quickly. The duty imposed on an occupier is not absolute. He must take reasonable care in the circumstances.

The Judge added that as there was no evidence of historical injury, this showed a modestly low risk. There was no evidence to show the door had caused accidents on any other occasion and this must assist the overall decision. 

Effect

This case follows numerous others dealing with an occupier’s duty to its visitors versus a parent’s responsibility to his/her child(ren), and, in a world obsessed with health and safety, cases involving a school’s responsibility versus a parent’s responsibility are becoming more and more common. 

A parent has an inherent duty to look after his/her children and should not always look to blame others when accidents occur. It is common sense not to place fingers in the hinge of a door and, whilst a child may not yet be aware of simple dangers, it is for a parent, in supervising her child, to warn of the day-to-day hazards the child will face.

A teacher is, of course, under a duty to care for those under his/her supervision; this is not a question of shunning responsibility nor ‘passing the buck’, but when a child is under the supervision of her mother, at what point can a teacher be held more responsible for the child’s supervision? When a child is in the presence of both parent and teacher, the parent must assume some, if not all, the responsibility.

The outcome of this case will be welcomed by teachers across the country. In today’s blame culture, when teachers and schools are bound by more and more rules and regulations, this case is a reassuring confirmation that the law does not consider an occupier’s liability to be unlimited. Of course, a school should always take measures appropriate to the age and nature of its pupils. Yet children suffer knocks and scrapes all the time: it is part of growing up and, in this instance, an ‘unhappy accident’ has been treated as such.

For more information, please contact Narrinder Taggar on 0118 955 3071 or by email