Law of the locale
26 November 2001
The case of Chittock Woodbridge School (25/7/2001) involved a school skiing trip organised by the defendant school. The claimant, his parents and the school were all aware that the trip was essentially an independent holiday, with general supervision from the school staff. An incident occurred in which the claimant and his friends were found to be skiing off-piste - they were instructed by school staff not to repeat this. However, a second incident of off-piste skiing took place and the claimant was given a further warning not to repeat the behaviour. He was not punished and the following day the claimant again skied off-piste. On this occasion he suffered an accident, leaving him with significant spinal injuries.
In its decision, the High Court stated that, had the accident occurred in the ordinary course of unsupervised skiing on the established runs, there would have been no liability. However, the second incident meant that staff on the trip knew that the claimant was in breach of a clear instruction. Merely telling him off was insufficient and significant action should have been taken after the second incident to ensure that he did not ski off-piste again. The court declined to distinguish between the school and the claimant and so apportioned liability equally between them.
The decision highlights some of the difficulties of supervising children outside school confines and underlines the point that the cost of failing to understand the duty to supervise may be extremely costly.
David Wilby QC of Old Square Chambers and David de Jehan of St Paul's Chambers were instructed by Marrons for the claimant. Edward Faulks QC, head of No 1 Serjeants' Inn, and Edward Bishop of the same set were instructed by Vizard Oldham for the school.
A line of authorities on public nuisance culminated in the recent decision of the House of Lords in Delaware Mansions Westminster City Council (25/5/2001). The claimant sought to recover expenditure incurred while remedying damage caused by the root action of a tree belonging to the defendant council.
The costs to the claimant were sizeable. As the freeholder of some blocks of flats, underpinning works costing in excess of £500,000 were carried out to preserve them. One point against the claimant's case was that the damage had occurred before he became the freeholder; consequently, the council contended that the claimant had no cause of action in nuisance, since it could only recover in respect of fresh damage after the date of purchase in 1990.
To decide whether or not the claimant had a cause of action, the Lords elected to apply the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability. It found a continuing nuisance during the claimant's ownership until at least the completion of the underpinning in 1992. Given the proximity to the blocks of flats, the risk of damage being caused by the trees was foreseeable. That further cracking of the superstructure had not occurred after 1990 was irrelevant. Reasonable remedial expenditure was recoverable by the claimant as the defendant knew or ought to have known of the continuing nuisance.
Richard Mawrey QC and Adrian Cooper, both of 2 Harcourt Buildings (Roger Henderson QC), were instructed by Vizard Oldham for the council. Michael Pooles QC and Simon Wilton of 4 Paper Buildings (Jean Ritchie QC) were instructed by Beachcroft Wansbroughs for the claimant.
In Kane New Forest Council (13/6/2001), the claimant was injured by a car as he emerged from a footpath on a dangerous bend in the road where vegetation obscured the view of oncoming drivers. The defendant council had required the construction of the footpath as part of the planning process by a developer. However, the footpath was opened to the public before the highway authority had carried out the relevant works. The claimant submitted that the council had positively created a hazard on the highway by insisting on the construction of the footpath and yet permitting it to be opened before it was safe. The Court of Appeal held that the council could be liable for damages in negligence if it stood by and waited for others to cure a source of danger that it had created by a requirement in the planning process.
Anthony Coleman of 3 Paper Buildings was instructed by Moore & Blatch for the claimant. John Snell of 2 Temple Gardens was instructed by Beachcroft Wansbroughs for the council.
In Wandsworth London Borough Council Railtrack (30/7/2001), the defendant owner of a railway bridge neglected to deal with some pigeons nesting underneath its property, whose droppings were soiling a pavement. The Court of Appeal found in favour of the claimant council and confirmed that if Railtrack was aware of a nuisance, and had the means and a reasonable opportunity to abate it, and had chosen not to do so, liability would be found.
Anthony Porten QC, joint-head of 2-3 Gray's Inn Square, and Ranjit Bhose of the same set, were instructed by Judge & Priestley for the council. Timothy Dutton QC and Giles Wheeler, both of Fountain Court, were instructed by Kennedys for Railtrack.
Public nuisance does not always involve buildings or infrastructure and one case heard during the summer is proving very advantageous to local authorities striving to cope with undesirable elements in deprived areas. In Nottingham City Council Zain (31/7/2001), the claimant council exercised its power under s.222 Local Government Act 1972 to institute and take part in legal proceedings where it considered it to be in the interests of the inhabitants of its area. The council had contended that the defendant to the action for an injunction was involved in trafficking drugs. The judge who struck out the council's application for an injunction held that the court lacked the jurisdiction to make such an order because drug abuse was a matter for the police and not the local authority. The appeal was granted by the Court of Appeal, which held that, provided a local authority considered it expedient for the promotion or protection of the interests of the inhabitants of its area, it could institute proceedings in its own name with a view to putting a stop to a public nuisance.
David Matthias of 2-3 Gray's Inn Square was instructed by Tony Austin for the council. Ian Wise of Doughty Street Chambers was instructed by Bhatia Best for the defendant.
Vicarious liability for sexual assaults was the subject of the House of Lords' judgment in Lister & Ors Hesley Hall (3/5/2001). The defendant school educated boys with emotional and behavioural difficulties and the claimants were resident at the school between 1979 and 1982. During that period, they were subjected to systematic sexual abuse by a warden employed to look after the boys attending the school. Following criminal proceedings in the early 1990s, which culminated in the imprisonment of the warden, the claimants brought personal injury claims against the school. They alleged that it was negligent in selecting, appointing and supervising the warden and claimed that it was vicariously liable for his torts.
First, the school was found liable for breaches of duty in failing to report any harm that had come, or might have come, to any of the boys in the care of the warden. The Court of Appeal opted for a stricter definition of vicarious liability and held that, as the sexual assaults were themselves outside the course of the warden's employment, the failure to prevent or report those assaults could not be within the course of his employment. In an expansive decision overturning the conclusion of the Court of Appeal, the House of Lords found that the determining factor concerning liability was whether or not the warden's torts were so closely connected with his employment that it would be fair and just to hold the school vicariously liable. On the facts of this case, the answer was in the affirmative.
Richard Maxwell QC of Doughty Street and Rosalind Coe of Ropewalk Chambers were instructed by Last Cawthra Feather for the claimants. Andrew Collender and Andrew Miller QC, both of 2 Temple Gardens, were instructed by Beachcroft Wansbroughs for the school.
For 14 claimants in Various Claimants (1) Bryn Alyn Community Homes (2) Royal SunAlliance, (26/6/2001), the judgment in Lister could not have come at a better time. Their claims were contested by the second defendant, insurers of the first defendant (an operator of children's homes which was in liquidation). Following the decision in Lister, vicarious liability was established for the crimes that took place between 1973 and 1991. The main difficulty faced by the claimants here was that each of the claims was statute-barred. Despite the delay in bringing the claims, the court elected to exercise its discretion under s.33 Limitation Act 1980 and allowed the claims to proceed. The delay was attributable to an entirely understandable lack of confidence or ability on the part of the claimants to talk to others at an earlier stage about their very unhappy and embarrassing experiences. This aspect far outweighed any prejudice to the insurers in having to meet what were otherwise stale claims.
Robert Owen QC and Jayne Adams, both of Ropewalk Chambers, were instructed by Uppal Taylor for the claimants. Edward Faulks QC and Nicholas Fewtrell of 18 St John Street were instructed by Hill Dickinson for the defendants.
Padraig O'Briain is assistant editor of specialist products at Lawtel