Children’s Mischief is Foreseeable

Jolley v Sutton LBC (H of L WLR 24 May)

A boat was brought on a trailer and abandoned on a grassed area where children played in a council estate. The boat was exposed to the elements and became derelict and rotten. It was neither covered nor fenced around and the trailer was by the side of it. Complaints about the boat were made to the council by residents of the council flats but it remained there for over two years. The claimant, aged 14, and a friend decided to try to repair the boat; they jacked it up, but it fell on the claimant as he lay underneath it. He sustained serious spinal injuries and was now a paraplegic. The Court of Appeal had overruled the trial judge’s finding of liability and his award of £621,710 damages on the grounds that although it was foreseeable children would be attracted by the boat and would play with it, it not reasonably foreseeable that an accident could occur as a result of the boys deciding to work under a propped-up boat. In allowing the claimant’s appeal the House of Lords held that what the boys did was not so very different from normal play. The judge’s observation that play could take the form of mimicking adult behaviour was a perceptive one. The issue whether an accident of a particular type was reasonably foreseeable was technically a secondary fact but perhaps it was more illuminating to call it an informed opinion by the judge in the light of all the circumstances of the case. The Court of Appeal was not entitled to disturb the judge’s finding of fact. The House observed that the ingenuity of children in finding unexpected ways of doing mischief to themselves and others should not be underestimated.