Duty of care in children’s activities: lessons from CC v Leeds City Council

In the case of CC (by his Litigation Friend MC) v Leeds City Council [2018] EWHC 1312 (QB), the Court of Appeal upheld a judge’s finding that a failure to warn of an issue identified in a risk assessment for children’s activities was both a breach of duty and causative of an injury. This judgment remains a notable authority on issues of negligence, duty of care, and causation, particularly in the context of public liability and children’s safety during organised activities.
rnhe case involved a claim on behalf of a 10 year old child against Leeds City Council for injuries he sustained at a council operated play/entertainment site called Kirkstall Abbey. The claimant visited the site, which is located in a public park, with his family. Various amusement activities were set up, including an activity where children were equipped with laser guns to fire at each other inside a large inflatable structure divided into nine pods. The pods were separated and the separation areas resulted in a change of level between the pods. There was some lighting but, because of the lasers, this was kept very dim.

The claimant was participating in the laser gun activity; very shortly after entering the inflatable structure, while moving between the pods, he fell over one of the raised separation areas and onto his laser gun. He sustained serious injuries to his mouth and teeth due to the force of the impact. The claim was denied and at first instance the judge held that, given the nature of the activities and the use by children, the defendant had not met the required standards of care in terms of safety. There had been a breach of duty in not ensuring that the raised areas were easily visible (eg by fluorescent marking) and in not warnng participants of the presence of the raised areas between the pods.

Of note was the fact that a risk assessment had specifically identified the risk of tripping and the need to warn participants and that there had been several previous incidents of children tripping and sustaining injury. The judge’s finding was that in this instance the children had not been warnd about the risk of tripping and that the staff’s standard advice/warnngs did not cover this despite the findings of the risk assessments and the previous incidents.

Although the defendant did not in the end pursue the part of the appeal relating to breach of duty, it appealed on causation, arguing that the judge’s finding that a warnng would have prevented the accident was flawed. It argued that the claimant’s evidence was that as he entered the structure he could see the layout and so being told of the difference in levels would have made no difference.

The Appeal Court held that the judge had heard the evidence of the claimant and formed his own view on what he was aware of and how he would have responded to a warnng. The evidence had been that the boy had only just entered the structure and his eyes were adjusting to the dim light. While he was aware of a step/change in level, he had no perception of the height/depth and no awareness that this was a trip hazard. The court felt that the point was that a child could be aware of changing levels without appreciating the risk that they presented. Such awareness was very different from a detailed knowledge of the layout and a warnng of a specific tripping hazard. The appeal was dismissed.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches Cooper, comments: “It was considered surprising by many people that the defendant chose to appeal this case – although it did realise that the appeal on breach of duty was destined to fail. The case emphasised a number of key points relevant to public liability claims:

• that a child being aware of the presence of something that could be a hazard is not the same as a child understanding the nature of the hazard/risk presented;

• that an employer/occupier identifying a specific risk in a risk assessment and a way of managing it, and then not putting that management into practice, is always going to have difficulty defending a claim where that unmanaged risk results in injury;

• previous incidents of injury should result in further risk assessments and action – and a failure to respond is likely to be a breach of duty;

• where measures to be taken to manage an identified risk are simple and inexpensive, a defendant will have difficulty defending a failure to implement them;

• warnng children of a specific risk is acceptable risk management – courts want public services and activities to be provided and accept that these always carry some risks but have a wider benefit. The emphasis should be on identifying and warnng of the risks rather than needing to eliminate them.”