Dyer v Ilfracombe U D C
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE PARKER |
| Judgment Date | 15 November 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1115-2 |
| Court | Court of Appeal |
| Date | 15 November 1955 |
[1955] EWCA Civ J1115-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Jenkins and
Lord Justice Parker
MR. NEIL LAWSON, Q.C., and MR. M.D. VAN OSS (instructed by Messrs William Charles Crocker, agents for Messrs Baxeley, Barnes & Baxeley, Bideford) appeared as Counsel on behalf of the Appellants (Defendants).
MR. MALCOLM WRIGHT, Q.C., and MR. T.A. DEWAR (instructed by Messrs) Gibson & Weldon agents for Messrs S.A. Corpp & Son, Barnstaple) appeared as Counsel on behalf of the Respondents (Plaintiffs).
This is an appeal from a Judgment of Mr. Justice Pilcher given at the Assizes at Exeter on the 18th June of this year. He had before him a claim made by a small boy, David Dyer, who sued by his next friend, for damages for personal injuries which it was alleged were caused throughnegligence on the part of the Defendants, the Ilfracombe Urban District Council. Mr. Justice Pilcher gave judgment for the Plaintiff for the Plaintiff sum of £100 damages to the boy and some £12 out-of-pocket expenses to his mother, holding that the Defendants were guilty of negligence, which brought about the injury which the boy suffered. The Defendants appeal against that Judgment.
The injury was slight, or comperatively slight. He sustained a broken arm; the bone united fairly soon, and the boy was soon as well as he was before.
The action might well have been brought in the County Court. It was brought with the aid of the Legal Aid & Advice Act, 1948, and I suppose the Plaintiff, who was successful in the Court below, is again assisted under that Statue.
The Ilfracombe Urban District Council have had for some years a recreation ground – perhaps more than one. In one of them they had that which is called a chut, something by which children can ascend steps to a height of 12ft. and then slide down on the other side where, in the ordinary course, they come safely to rest upon their feet. The Defendants had one of those for quite a long time, and no accident happened upon it and no complaint was made. Prior to the Coronation in the year 1953, the members of the District Council thought that they would increase the number of recreation grounds within their district, believing it to be in the best interests of the inhabitants and hoping that it would encourage children to go to them rather than to play upon the roads and streets where there is often danger. So they made two or three more recreation grounds and they installed a chute in each of these new recreation grounds. We are only concerned with one of them, that is what is called the Slade Lane Recreation Ground. It was in a new housing estate of the District Council. The photographs to which we have been referred ow something of the lay-out of the housing estate and the recreation ground, and other photographs show the chute.
The chute was put up shortly after the Coronation. On the 26th June 1953, the accident happened to the boy, David Dyer,who was then 4 years old. His home was qui near the recreation ground, and he went to it. He fell from the chute. It is not easy to see precisely how he fell, but it seems as though he got up to the top of the chute on the platform, 12ft. above ground level, and in some way he climbed through or got through between the lower rail and the upper rail. There are rails all the way up the steps, and there are rails on the platform. He was seen by a boy, who was little older, falling through between these two rails.
There was little evidence given on behalf of the Plaintiff. The mother of the boy, Mrs. Dyer, gave evidence, mostly as to the boy's condition and as to his age. She was not asked whether she allowed the boy to go to the recreation ground nearby or whether she had warned him to be careful, or not to use any of the swings or other things provided for entertainment unless he had someone older with him. The boy was not called, and it is that which perhaps makes one say that no one knows precisely what happened. I am not suggesting that he ought to have been sworn of necessity. But if he had been asked he might quite well have been able to say what happened; I do not know. Suffice it to say that he fell from the platform to the ground and he broke his arm.
On behalf of the Defendants there was called only one witness. Mr. John Lancaster Jemett, the Chairman of the Urban District Council, who said that the members of the Council were anxious to increase the number of recreation grounds. I think he said there had been a petition in regard to those matters, and the Council, accordingly, made more recreation grounds and took advice as to what was the best form of chute for them to have. I suppose everyone is familiar with a cute, and I suppose everyone knows the kind of age of those who are meant to use a chute such as the one with which we are dealing: not babes in arms, nor yet grown persons.
The boy appears to have been by himself. There were other boys nearby. The witness for the Plaintiff, Terence Moss, said that there were other children going up the steps of thechute when the boy Dyer was about the top. But no one saw any jostling or pushing, or anything of that kind. They boy fall for no reason that can be given. There is nothing to show whether he had been up the chute before or not; no information whatever.
The action came on for hearing before Mr. Justice Pilcher on the 13th June. It continued on the 14th June, and he gave his Judgment on the 18th June. The learned Judge was obviously impressed by some evidence given by Mr. Jeett, the Chairman of the Urban District Council, who was asked by Mr. Justice Pilcher: "Did it strike you that the accident might have been caused because the child was too young to play on a thing like this? (A) It struck me perhaps that the child was too young to be there unaccompanied. (Q) But you did not put any notice about that up? (A) No, because obviously the child could not read it under five years old. (Mr. Dewar): No notice or regulations of any kind saying: 'Parents are advised not to let children under five use this apparatus' were put up? (A) No". Then he was referred to photograph B, and was asked by learned Counsel: "Are you a parent? (A) Yes. (Q) Would you let one of your toddlers go there and climb up there without anybody there? (A) What age would you call a toddler? (Q) 4 years. (A) My sons have been on there since they were 4. (Q) You take the view that you would let your children, even though you were not there, to climb up there when they were 4 years of age? (A) I said if I were there I would permit them to do it". Then the learned Judge asked: "Would you allow a child of 4 to go and climb on this thing unaccompanied by a responsible adult? (A) No. (A) Why not – because it is not safe? (A) No, I do not agree. (Q) Then why? (A) Because they do not appreciate always that the way to approach this thing is up the steps in a proper manner. (Q) They may hurt themselves? (A) They may misuse it. (Q) Are you afraid of a 4 year old damaging your slide? (A) No, I am suggesting they may mis it other than as a chute. (Q) Because they may hurt themselves, is that what you say? They are not going to hurt the chute? (A) No. (Q) Is it becausethey may hurt themselves? (A) Yes". The learned Judge, having referred to thse answers, said in the course of his Judgment: "That qualification was, I think, added because it had been suggested that if a child, even of four and a half years, bravely walked up the steps of the chute, on to the platform and sat down on the chute, it was unlikely that it would come to any harm, and with that I whole-heartedly agree. But, unfortunately, unattended children of four and a half years do not set in that fashion; they do not perceive the dangers of playing, perhaps swinging, on the little guard rails provided, and it does not want much of a push or a jostle to cause a small body to go through these rails, as happened in this case. That, no doubt, is the reason why Mr. Jett said what he did. Mr. J expressed a view which entirely coincides with my own". Mr. Justice Pilcher added: "As I said at an early stage in the case, whilst this was no doubt a very excellently constructed chute, the only point in the case was whether any condition ought to have been applied to the licence regarding the use of this chute by very small children. I do not propose to lay down any age below which some conditions should be attached to the licence granted to children to use this chute, but I am satisfied that the chute was not safe for the use of an unattended, small child of the infant Plaintiff's age; and in face of what Mr. Jeett said in the witness-box, I find it quite impossible to say that Mr. Jett did not appreciate that, because he quite clearly did".
The learned Judge found that the chute was bought from experienced manufacturers; that it was of excellent design; that it was a perfectly sound construction, and that it was properly installed. Mr. Malcolm Wright on behalf of the Plaintiff added that the Judge found that the chute was not safe for an unattended mall child, and that the Defendants knew that.
A question of law arises which has been discussed in the Courts frequently. It is agreed on both sides that the boy who was hurt was a licenc and that he had all the right of one who was permitted by the Defendants to go upon their recreationground. The duty towards a licenc is that the (the Defendants in this case) must warn him of any concealed danger or trap of which the occupier knows.
One question for consideration is: Is there a distinction for this purpose between the case of a grown licenses and one who is quite young? May there be a danger which is not a concealed danger in the ordinary sense, but which ought to be regarded as a concealed danger if the licenses is of...
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