Sean Jude McKinney(Minor) by his mother and next friend, Elizabeth McKinney and Reverend Father Hugh Kennedy Representing the Trustees of Sacred Heart Primary School
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Neutral Citation | [2008] NIQB 101 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 23 September 2008 |
1
Neutral Citation No. : [2008] NIQB 101 Ref:
McC7261
Judgment: approved by the Court for handing down Delivered:
23/9/08
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
______
QUEEN’S BENCH DIVISION
________
2004 No 1822
_______
BETWEEN:
SEAN JUDE McKINNEY (a minor)
by his mother and next friend, Elizabeth McKinney
Plaintiff;
and
REVEREND FATHER HUGH KENNEDY, REPRESENTING THE
TRUSTEES OF SACRED HEART PRIMARY SCHOOL
Defendant.
_______
McCLOSKEY J
I INTRODUCTION
[1] Sean Jude McKinney, the Plaintiff in this action, was born on 8
September 1988 and is now aged 20 years. He claims damages for personal
injuries allegedly sustained by him arising out of an accident alleged to have
occurred on 30 June 2001 within the curtilage of the premises of Sacred Heart
Primary School, Belfast (“the school premises”). The Plaintiff was then aged 12
years. His action is brought against the Reverend Father Hugh Kennedy, as
representative of the trustees of the school. It is not disputed that the trustees
are the owners and occupiers of the school premises.
[2] In brief compass, the Plaintiff’s case is that during the afternoon of 30
June 2001, in the course of playing football with friends at the school
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premises, he ascended to a relatively low single storey roof for the purpose of
retrieving the ball. In the course of attempting his descent to the ground, his
left hand came into contact with a sharp metal device fitted to the roof. This
inflicted a nasty tearing injury. It is common case that the offending device
was a climbing deterrent. Its function was to discourage access to and along
the roof in question. It was contended that, in installing this device, the
Defendant was guilty of providing a trap, essentially because it had a
relatively harmless appearance but, in reality, was dangerous, deceptively so.
II THE EVIDENCE - A SUMMARY
[3] On the accident date, 30 June 2001, the school had closed for the annual
Summer vacation. The term had ended some few days previously. The
Plaintiff had just completed his first year at St Patrick’s Secondary School,
Belfast. He had formerly been a pupil at the Sacred Heart Primary School,
until June 2000. His address at the time of the accident was 7 Glenpark Street,
Belfast, not far from the school premises.
[4] The Plaintiff testified that at around 3.30 pm to 4.00 pm on 30 June
2001, he was a member of a group of some 12 or 14 boys who were playing
football on an open hard surfaced recreation area within the school premises.
They had gained access to the premises via a gap in the perimeter fencing
proximate to 15 Arbour Street, at the rear of the premises. The point of access
was depicted in photographs 11 and 12 and was further identified in the
accompanying location plan. According to the Plaintiff, two of the upright
members of the perimeter palisade fence were missing on this date. The
Plaintiff gave evidence that he and one of his fellow players, whom he
identified as an English boy named Edmund, climbed on to a single storey
roof with a view to retrieving the ball. They gained access to the roof by
scaling a protective metal window cover. They then made their way along
the roof, passing the offending fitting and successfully retrieved the ball,
which had nestled in a recess above a double door. [I refer particularly to
photographs 2, 3 and 4, in this context]. Having returned the ball to their
friends, they then proceeded back along the roof, in the opposite direction.
[5] The offending fitting is situated directly above a downpipe. The
Plaintiff testified that, on the return journey, he made his way as far as this
point, whereupon he attempted his descent. According to him, he had his
back to the playground and he was, therefore, facing the building. In this
position, he attempted to drop to the ground. In the course of this
manoeuvre, his left hand came into contact with the right hand side of the
offending fitting, with resulting injury. The Plaintiff suggested, uncertainly,
that the fitting may have moved or “spun”. He testified that everything
happened very quickly.
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Wray v Derry & Strabane District Council
...South East Education and Library and NK Fencing [2004] NIJB 13 (per Higgins J as he then was) and McKinney v Secret Heart Primary School [2008] NIQB 101 (per McCloskey J as he then was). [16] Mr Millar BL, for the defendant, relied, in particular on Phillips v South East Education and Libra......