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By Kim Pryce
Torts - Government - Personal injury - Occupier's Liability - Children- Section 2 Occupier's Liability Act 1957 - Reasonable safety of school visitors
 EWCA Civ 1230
McFarlane LJ, Sharp LJ
16 October 2013
A school was not in breach of their statutory duty when a child was injured after punching a water fountain. The question which the judge should have addressed was whether as a matter of fact, visitors to the school were reasonably safe in using the premises.
On 9 June 2010, the claimant a nine and a half year old boy was at school playing with his younger brother in the playground, by the water fountain which had been installed earlier that day by the school's maintenance engineer. The claimant's brother flicked the claimant with water and when the claimant attempted to punch him, his brother ducked below the water fountain. The claimant missed his brother and punched the underside of the water fountain instead sustaining a laceration to the dorsal aspect of his right thumb and associated tendon damage. The claimant subsequently made a full recovery, although he was left with a 2.7 cm scar on his thumb, which did not concern him.
Litigation was commenced and quantum agreed at a sum of £3,000 for general damages and £215.16 for special damages. At trial, the judge gave judgment for the claimant concluding that the base of the fountain was extremely sharp and that the school had not carried out a proper risk assessment but had to an extent relied on internet advertisements promoting the water fountain. The school appealed this decision on the grounds that the judge had not applied the common duty prescribed by s.2 of the Occupier's Liability Act 1957.
On appeal, it was held that the question which has to be addressed is whether as a matter of objective fact, the visitors to the school were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults and are inclined to lark around.
In allowing the appeal, it was held that the visitors were safe in using the premises. The water fountain was reasonably safe and there was no evidence to establish that it was not safe or constituted a danger to children. The school was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidently injure themselves.
Comment: This case illustrates the merits of applying the principles of s 2 of the Occupier's Liability Act 1957 strictly.