If you are sitting comfortably, I’ll tell you the story of the boy who tried to punch his younger brother but instead hit a water fountain and then sued his school for damages. Or rather I’ll tell you how the Court of Appeal told it in West Sussex County Council v Lewis Pierce [2013] EWCA Civ 1230:
“In the summer of 2010 [the claimant] was nine and half years old…[He] and his younger brother George who was seven were at the School with their mother for an after school gardening club which their mother helped to run. Whilst there the boys got into mischief. They went over to the water fountain. George sprayed the claimant with water from it and the claimant then tried to punch George, who by then, no doubt prudently, was positioned somewhere underneath the water fountain. George dodged the punch, the claimant missed him, and punched the underside of the water fountain bowl instead, sustaining a laceration to the dorsal aspect of his right thumb and associated tendon damage. The damage to the tendon was repaired shortly afterwards under general anaesthetic. Happily, the claimant subsequently made a full functional recovery. He was left with a hockey stick shaped scar of about 2.7 cm on his thumb about which according to his own medical evidence, he was completely unconcerned.”
Naturally, though, this being a 21st century story rather than something from the Brothers Grimm, the school was then sued for damages.
The water fountain looked like this:
The manufacturer estimated that about 20% of schools in England and Wales had the same water fountain and gave evidence that there there had never been a report of any accident involving one, nor any complaint, during the period 2001-2010. Nonetheless, District Judge Gamba, having inspected its underside and pronounced it “sharp”, held that the school had not properly considered the risk of harm, not done a proper risk assessment, and awarded £3,215.16 damages.
The happy ending to this story (from the school’s point of view) came in the Court of Appeal where the decision was quashed by Lord Dyson MR, Sharp and McFarlane LJJ.
Sharp LJ said at [12] that the judge seemed to have proceeded on the flawed basis that once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the school was liable for what happened unless it had conducted a proper risk assessment. But the real issue was “whether, as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around” [17].
In order to help answer this question, and in what may be a first for the Court of Appeal, the judges themselves also examined the water fountain. In a conclusion that raises intriguing questions about the comparative sensibilities of the judges involved, they disagreed with District Judge Gamba and said that the underside could not be described as sharp.
The judgment goes on to say:
“But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children. Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb . But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.”
The Court concluded by saying that “it was of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen”.