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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barrie v Cardiff County Council [2001] EWCA Civ 703 (9 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/703.html Cite as: [2001] EWCA Civ 703, [2002] ELR 1

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) sitting in CARDIFF
ON APPEAL FROM THE CARDIFF COUNTY COURT
(MR RECORDER PHILIPS)

		Civil Justice Centre 2 Park Street Cardiff CF1 1E2 Wednesday 9 May 2001

1. LORD JUSTICE PILL: This is an appeal against a judgment of Mr Recorder Philips QC given at the Cardiff County Court on 12 July 2000. He awarded damages to an infant claimant who had fallen in the playground at St Albans Roman Catholic Primary School in Cardiff where she was a pupil. At the time of the accident, on 6 January 1994, she was 6 years old.
2. Photographs of the playground where the accident happened were before the recorder and are before this court. They show the playground clearly and, in particular, the place where the claimant tripped and fell. There was no reason in this case why the recorder should visit the school. He was well able to assess the physical nature of the playground by reference to the photographs and this court is in equally as good a position.
3. The playground has several different surfaces. Immediately adjoining the building is a paved area with conventional paving stones about 3ft square. Away from the paving stones and adjacent to them was, at the material time, a tarmacked area on a very gentle slope. On at least two sides of the tarmacked area there is a concrete edging. It was over the concrete edging, described as a concrete fillet, between the tarmacked area and the paving stones that the claimant fell. There is no dispute in this court as to where the trip occurred.
4. There were other issues of fact before the learned recorder. He resolved those and his findings are not challenged in this court. The recorder found that the accident happened in this way:

"I am completely satisfied that Sam tripped over the concrete fillet which exists to a height of 15mm between the tarmacadam surface on the slope and patio, closer to the reception classroom. ...she fell because she tripped over the concrete fillet."

5. The precise word used does not affect the outcome of the case, but what is described as a "fillet" would be regarded by most people as a concrete edging; it has a rounded top. It is agreed that the height of the concrete, by way of its protrusion above the tarmac, was 15mm, which is marginally less than two-thirds of an inch.
6. The recorder had to consider whether the defendants, as the local education authority, were in breach of their duty to the claimant because of the condition of the playground. It is common ground that they owed her a common duty of care. Mr Prys-Lewis, for the claimant, put the duty as one to make the playground reasonably safe for the claimant's use.
7. The use made of the playground is not in issue. It was used by children aged from 4 to 7 years. Each day for more than one period, between 100 and 125 children played in the area. It had been in the condition it was in at the time of the accident for a considerable time and the claimant was very familiar with it. There is no record of any previous accidents having occurred in the way the claimant suffered hers, and there is no evidence of complaint about the condition of the playground by reason of the presence of the rounded top edging stone (which was of considerable length) and the difference of level (15mm) between it and the tarmacked surface.
8. The headmaster gave evidence that there had previously been a stone dust surface where the tarmac has now been laid. That had become uneven, partly because of ordinary use and partly because of children in ordinary play excavating parts of the stone. Asked about the condition in the area before the tarmac replaced the stone dust, the headmaster stated that the difference in height between the stone dust and the ridge differed simply because some of the stone had been excavated by the children. It would have been higher than it is now in some places and not as high in others.
9. The recorder's findings are set out at page 14 of his judgment:

"The reality is that I have to decide whether or not this playground was of an acceptable standard. The question is, as I see it: was the concrete fillet too high for an infant playground in 1994? I have found this a difficult, finely balanced decision to make. However, my finding of fact, made on the evidence, is that it was not of an acceptable standard; that it was too high. The reasons for that, and what has finally persuaded me, is something which Mr Prys-Lewis said in his closing submissions, which is that we are dealing with infants; we are dealing with very young children aged between four and seven. Whereas at one stage I was very much persuaded by Mr Venmore that a 15mm (or two-thirds of an inch) trip was not excessive, I have come to the conclusion that although that may well be the case in relation to adults, or even secondary school children, when we look at the pupils who are using this playground - very young children, who are running around, less stable and experienced at looking after themselves than older children, and who, as we know, are supervised constantly by a teacher in the playground - that for infants, this particular trip, in this particular playground was too great. For that reason, after, as I say, some hesitation, I make this clear finding of fact - that the cause of the fall was the cement fillet, and that the cement fillet was too high and was not of an acceptable standard."

10. In supporting the conclusion of the judge, Mr Prys-Lewis refers to the fact that the tarmacadam surface had been laid by the defendants. This was not a case where there had been a gradual break down of the surface as one finds sometimes in highway cases. This was a case where tarmacadam was laid and consciously not laid to the level of the edging stone, so that after the work was completed the difference of level of 15mm was created.
11. Mr Prys-Lewis also underlines the finding of the recorder that the age of the children was a significant factor in considering whether the duty of care was discharged. He submits that children run in all directions, often not looking where they are going and it was foreseeable that a child would trip and sustain significant injury as a result of this change of level. He submits that, as compared with standards on the highway, particularly those parts of the highway which pedestrians use, the duty on an education authority in these circumstances is a higher one.
12. In my judgment, it is not seriously challengeable that there had been no significant accident in this playground due to the change of level which existed. As the judge found, the children were constantly supervised by a teacher in the playground. Had there been any serious injury, it would undoubtedly have been reported and recorded. Had there been significant incidents of children tripping, I would have expected the staff at the school to be aware of them. The absence of previous accidents of any significance is a factor upon which Mr Venmore relies in submitting that the recorder adopted too high a standard in his approach to the facts of this case.
13. Reference has been made to the highway cases and in particular to the decision of this court in Mills V Barnsley Metropolitan Borough Council [1992] 1 PIQR at page 291. I readily accept that there are differences of approach required when considering the position of a playground and that of a highway, but there are common features in approaching the question of the standard required. While on the one hand it can be said, as Mr Prys-Lewis submits, that young children will be expected to rush around and take less care for safety than would older people, he accepted that the resilience of young children must also be borne in mind. A factor in highway cases, the presence of frail and disabled people, does not arise in a question of a school playground.
14. In Mills, Steyn LJ, at page 293, considering the duty of a highway authority, stated that the plaintiff must prove, as far as is material to this case, that:

"the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public."

15. Mr Venmore submits that if one substitutes the word "children" for the words "traffic or pedestrians" and at the end of the quotation for the word "public", one has an appropriate test for present circumstances. Steyn LJ also stated, when considering the height of the ridge in that case and whether one can have a height above which a pavement must be considered unsafe:

"Such mechanical jurisprudence is not to be encouraged. All that one can say is that the test of dangerousness is one of reasonable foresight of harm to users of the highway, and that each case will turn on its own facts."

16. I respectfully adopt Steyn LJ's approach in the present case, substituting of course the word "playground" for the word "highway" and having regard, as one must, to the circumstances in which a playground is used, which, as a matter of fact, will be different, as both counsel have asserted, from the circumstances in which a highway is used.
17. To the circumstances already mentioned, Mr Venmore adds an acceptance that the authority should have regard to a range of children. There will be some who are better on their feet than others, there will be some who are more ambitious in their play than others and there will be some who react to a fall less well than others. However, in this case, the fact that the claimant had brittle bones was not put forward as a relevant feature. The judge found at page 13F of the judgment:

"At one stage it was submitted that the effect of Sam's brittle bone disease might give rise to a higher duty, or an enhanced duty of care towards her, but Mr Prys-Lewis has now, very realistically, and in my view completely correctly agreed that in this case, as a matter of law, the standard which is to be applied is the standard which the school owed to ordinary infants - that is, young girls aged between four and seven."

18. Mr Prys-Lewis does not seek to go behind that finding. Nor, in my judgment, in the circumstances, was the concession anything other than realistic.
19. There is no doubt that a duty of care existed in this case. It then becomes necessary to enquire how much care the law requires to be exercised. Lord Wilberforce said in Goldman v Hargrave [1967] 1 AC 645 at 663 (Charlesworth's 9th ed paragraph 6-01):

"So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required?

The standard of care is a question of law but whether or not, in any given case, that standard has been attained is a question of fact for the judge to decide having regard to all the circumstances of the case."

20. In his written submissions, Mr Lewis stated that the judge had made a finding of fact with which this court should not interfere. This court is not asked to disturb the learned judge's findings of fact. It is, on the basis of those findings, for the court to set the standard of care which is appropriate to different circumstances. The recorder set it at the level which he considered appropriate. It is now for this court to consider what standard is appropriate in the particular circumstances and whether there was, by reason of the appropriate standard, a breach of duty by the defendants.
21. I bear in mind the extreme youth of the children, including the claimant. I bear in mind the height of the ridge and its length and the fact that some children will be more likely to fall than others. I bear in mind, against that, the absence of any previous recorded accidents, the amount of use to which the playground was put and the long period of time over which the difference in level had been present.
22. Considering the condition of the highway in Littler v Liverpool Corporation [1968] 2 All ER 343 at p345 Cumming-Bruce J stated:

"Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green."

23. While I accept that they are different considerations, to some extent, a playground is also not to be criticised by the standards of a bowling green. As Lord Justice Chadwick pointed out in argument by reference to the photographs, there are in this playground other tripping hazards of a minor nature. There is the length of edging at right angles to that complained of and there is a gully further away from the school building than the ridge complained of. It is not disputed that that does present a potential tripping hazard to some degree.
24. This was an unfortunate accident. It had a comparatively serious effect on the claimant. One does have considerable sympathy for her and her suffering. However, in the circumstances, I am not able to hold that the defendants were in breach of their duty to her. Changes of levels such as this occur in many places where people of all ages, including young children, walk and play. There is no evidence that this particular change of level had presented any significant problems. In my judgment, it was not a breach of duty to allow (or to fail to eliminate) this 15mm change of level in the primary school playground. Danger could not reasonably have been anticipated from the presence of the ridge.
25. It is with reluctance that I differ from the recorder but, in my judgment, no breach of duty is established. The recorder set too high a standard in the circumstances. Accordingly I would allow this appeal.
26. LORD JUSTICE CHADWICK: I agree that this appeal must be allowed.
27. The question for the Recorder in this case was whether, in the ordinary course of events, a danger might reasonably have been anticipated from the continued use of this playground by children aged between 4 and 7 years.
28. It is important to emphasise that it was not contended before the Recorder, and it is not suggested in this court, that the fact that this claimant suffered from a brittle bone condition was a material factor to be taken into account in seeking an answer to that question. In particular, it was not suggested that that condition made it any more likely that she would trip. Nor that the fact that, if she were to trip, the injuries which she might suffer were likely to be particularly severe enhanced any duty owed by the local authority in respect of the school premises. I express no view whether in other cases those factors might be relevant. They were not advanced as relevant factors in this case.
29. It follows that, in this case the question posed at the outset of this judgment has to be considered on the basis of use of this playground by children generally; that is to say on the basis that within any group of children at a mainstream infant school there will be some who are more active than others, some who are more prone to tripping than others and some who are more likely than others to suffer serious injury if they do trip.
30. In a case where the judge has not himself viewed the playground - and I make it clear that I do not suggest that there was any need for the Recorder to do so in this case -it is inevitable that photographs will be an important - indeed dominant - element in the evidence upon the basis of which the question posed must be answered. This Court can see from the photographs which were before the Recorder what it was that led him to the conclusion that danger might or might not reasonably have been anticipated from the use of a playground. But, in relation to photographs, the trial judge enjoys no special advantage. An appellate court is as well placed as he was to evaluate the evidence of the photographs.
31. The Recorder answered the question in the affirmative. He thought that danger might reasonably have been anticipated from the continued use of this playground by children of young age. Like Lord Justice Pill, and for the reasons which he has given, I am satisfied that that was not the correct answer to the question in the circumstances of this case. It poses a standard which, to my mind, is unreasonably high.
Order: Appeal dismissed Order: Appeal dismissed with costs. No order as to costs but by consent the interim payment of £1000 paid to the respondent is to stand. Community Legal Services Assessment of respondent's costs.