Tort

Negligence - foreseeability - abandoned boat on local authority land - injury to child attempting to repair boat - local authority liableJolley v Sutton London Borough Council: HL(E)(Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Steyn, Lord Hoffmann and Lord Hobhouse): 18 May 2000

A boat was left abandoned for over two years on land owned by the defendant council beside a block of flats.

The council was aware of the boat's presence and made plans to remove it, but they were not implemented.

It appeared to be sound but was in fact rotten.

Two boys, the plaintiff and a friend, who were aged 14 and 13, started to repair the boat, using a car jack and some wood to prop it up.

The boat fell off the prop, crushing the plaintiff and causing serious spinal injuries resulting in paraplegia.

He brought an action against the council for damages in negligence and breach of statutory duty under the Occupiers' Liability Act 1957.

The judge gave judgment for the plaintiff with a reduction of damages by 25 per cent due to his contributory negligence.

The Court of Appeal allowed the council's appeal on the ground that although it was reasonably foreseable that children would play on the boat and be injured, it was not foreseeable that they would prop up the boat and be injured by its falling off the prop, and therefore the plaintiff's accident was of a different kind from anything the council could reasonably have foreseen.Brian Langstaff QC and Paul Spencer (instructed by Rowley Ashworth, Wimbledon) for the plaintiff; Michael de Navarro QC and Howard Palmer QC (instructed by Watmores) for the council.Held, allowing the appeal, that (per Lord Browne-Wilkinson, Lord Mackay of Clashfern and Lord Steyn) the Court of Appeal had no grounds for disturbing the judge's finding that the the accident was reasonably foreseeable; that (per Lord Hoffmann and Lord Hobhouse of Woodborough) 'reasonably foreseeable' was not a fixed point on the scale of probability and other factors had to be considered in deciding whether a given probability of injury generated a duty to take steps to eliminate the injury, namely, whether avoiding the risk would have involved the defendant in undue cost or required him to abstain from some otherwise reasonable activity; that the council's admission that they should have removed the boat because there was a risk that children would suffer minor injuries, showed that if there were a wider risk the council would have had to incur no additional expense to eliminate it; that therefore the wider risk would also fall within the council's duty unless it was different in kind from that which should have been foreseen; and that the actual injury fell within the broad description of the risk.

(WLR)