Court Success: Another victory for common sense
- Zurich Municipal welcomes the court success of Rhys Jablonski v Preston City Council at Blackpool County Court
- This claim in negligence was brought under the Occupiers Liability Act 1957, where the claimant fell from a play area structure owned and controlled by the defendant
- It once again highlights the principle that not all accidents are the fault of another
Zurich Municipal welcomes the court success of Rhys Jablonski v Preston City Council at Blackpool County Court.
This is another victory for common sense, following Karen Maria O’Rafferty v London School of Economics at the Central London County Court.
The claimant was with friends in a play area under the ownership and control of Preston City Council.
In the course of play, the claimant climbed onto the top of a “Teen Shelter” which was situated within the play area. He accessed the top of this structure by climbing an adjacent fence and stepping over onto the roof.
Whilst attempting to descend from the structure by sliding down the roof he fell, sustaining injuries as a result. The circumstances were not in dispute.
A claim in negligence was brought under the Occupiers Liability Act 1957. Section 2(2) of the Act states that:
“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
In addition to this the claimant alleged a breach of duty, caused by a failure to apply the relevant British Standard Regulation.
The claimant argued that BS EN 1176 obliged the defendant to install a soft surface around play equipment in playgrounds where there is a possibility of a fall from height of 600mm or greater.
In terms of negligence, the claimant argued it was reasonably foreseeable that the proximity of the fence to the shelter provided encouragement to visitors to climb the roof and that accidents would occur as a result.
The Court’s decision
Upon hearing evidence from the claimant’s expert engineer and various witnesses for the Council, the HHJ Carr dismissed the claim. He rejected the claimant’s allegation that the shelter was intended to be play equipment, so there was no obligation to provide a soft surface on or around the teen shelter. The claimant’s expert evidence was therefore flawed in terms of the applicability of the British Standard Regulation.
He also rejected the argument that the incident was reasonably foreseeable. He found that the Council took all reasonable care to ensure the reasonable safety of visitors. In explaining the reasons for his decision, HHJ Carr explained that it would have taken significant effort to climb the fence, as the mesh was not sufficiently large enough for a foot or part of a foot to enter it. In addition to this, once having scaled the fence, to then reach across to the roof of the teen shelter would have required a determined effort by the claimant which would be extremely hazardous. He accepted evidence from the Council’s witness that the design of the fence discouraged climbing, and importantly, there was a warning sign on the fence which told visitors not to climb it.
This is yet another heartening outcome for occupiers. The decision is suitably summarised by a quote from HHJ Carr himself: “accidents happen and not every accident can be translated into an entitlement to claim compensation…”
This claim was handled by Senior Claims Technician, Geraint Williams in Zurich’s Complex Injury Team.