Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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In CC (by his litigation friend MC) v Leeds City Council  EWHC 1312 (QB), the Queen's Bench Division gave guidance on the consequences of failing to implement control measures identified in a risk assessment.
In this article James Manning summarises the findings at first instance and on Appeal, and provides a useful reminder on the degree of care that needs to be exercised by local authorities when preparing risk assessments and implementing control measures.
The Claimant ("CC"), a child aged 10, was part of small group of family and friends who attended Kirkstall Abbey, a historic monastery owned by Leeds City Council ("LCC").
At Kirkstall Abbey, LCC provided a number of rides and amusements aimed specifically at children. One of the amusements was Hangar 51, where children were equipped with laser guns and sent into battle inside an inflatable hangar that was divided into nine pods. The laser battle took place in relative darkness and it would take a short while for the children's eyes to adapt to the conditions. The pods within Hangar 51 were at different levels and were separated by ridges, described as "tripping points".
CC entered Hangar 51 and, within approximately 30 seconds, tripped over one of the ridges and fell. The laser gun struck his front teeth and caused injuries.
HHJ Saffman determined that CC's accident was caused by LCC's negligence in that:
On appeal, LCC submitted that HHJ Saffman was wrong for the following reasons:
LCC's risk assessment in respect of the use of Hangar 51 was prepared four months before the date of CC's accident. Tripping accidents were identified as a foreseeable risk and the suggested control measure was "participants to be warned about ridge between pods and about the potential to trip over them".
LCC's supervisors were supplied with a warning script and issued a verbal warning to participants, before the activity started, not to run within Hangar 51. However the warning script did not mention the ridges and the potential to trip over them.
Furthermore, LLC's accident history for the summer 2014 season revealed that three similar tripping accidents had occurred the week before CC's accident, and one similar tripping accident happened the following week. LCC, recognising that the weight of the evidence was overwhelming, did not pursue these grounds of the appeal.
LCC's submissions on causation focused on two distinct points. These were:
So far as the first limb was concerned, HHJ Saffman had stated that LCC's failure to warn was a stand-alone cause of the accident. As to the second limb, a distinction was made between CC's inaccurate assessment of the difference in height between the pods (he was not able to judge the degree of hazard because of the lighting conditions), and LCC's actual knowledge of the hazard. The appeal court found that issuing a warning that was consistent with the control measure identified by LCC would have alerted CC that the difference in height would represent a tripping hazard if he was not careful.
LCC's concession that it had failed to issue a warning to CC and the findings on causation meant that there was no need to consider HHJ Saffman's approach in relation to the omission of fluorescent strips to the ridges or other preventative measures.
The appeal was dismissed on all grounds.
This case serves as a useful reminder of ensuring that where a reasonably foreseeable risk is identified, reasonable control measures are devised and implemented fully.
In this case, LCC correctly identified the risk of tripping and planned to warn participants verbally about the danger. Fatally, however, this warning was not given to participants because it was not incorporated into the warning script.
From a risk management perspective, a consistent approach in identifying, devising and implementing reasonable control measures is crucial, particularly in activities aimed at children.
Please contact James Manning for more information.