Foreseeable risk of harm - considering all relevant factors
E J (A Minor) v Merthyr Tydfil County Borough Council 
Along with other factors, any Judge faced with a claim under the Occupiers Liability Act 1957 will need to consider whether or not there was a foreseeable risk of harm before deciding upon breach of duty under the Act.
The foreseeable risk of harm will, of course, differ with the circumstances of each case and accidents involving children will always introduce an added dimension to the argument. This is illustrated by the recent decision in E J (A Minor) v Merthyr Tydfil County Borough Council that was heard in the Cardiff County Court and in which Dolmans represented the Defendant Authority.
Background and allegations
The Claimant, who was 11 years of age at the time of the accident, was a pupil at a school that was owned and occupied by the Defendant Authority. The building was old and had been utilised as a school since approximately 1912.
The Claimant alleged that while walking along a corridor in the school, she fell and caught her arm between an exposed radiator pipe and the corridor wall. As a result, the Claimant alleged that she had suffered a significant burn to her arm. The Claimant pleaded that she had not slipped or tripped as a result of any spillage or defect on the floor, but that her alleged accident had been caused by the Defendant Authority’s negligence and/or breach of statutory duty.
The Claimant also alleged that the Defendant Authority had failed to provide adequate first aid treatment at the time of her accident.
Evidence and arguments
The Claimant, who was 16 years of age by the date of trial, gave oral evidence and was cross-examined. She argued that the radiator pipes were hotter than normal and should have been covered. However, she was unable to explain the exact circumstances of her alleged fall, describing this merely as a "freakish" accident.
The Defendant Authority called various witnesses from the school to give oral evidence, including the person who had administered first aid at the time of the Claimant’s alleged accident. Basically, the Defendant Authority’s witnesses averred that there had been no previous issues with the radiator pipes and that it had taken all reasonably practicable steps to prevent harm to pupils. It was not considered necessary to cover the pipes and the Claimant’s alleged accident was not foreseeable in any event. There was no evidence that the radiator pipes were any hotter than normal. The temperature and configuration of the pipes did not present a foreseeable risk of harm.
Foreseeable risk of harm - considerations
The Judge took into account that there had been no similar accidents, which would suggest that there was no foreseeable risk of harm. However, he also took several other factors into account before dismissing the Claimant’s claim, including the following:-
Mechanism of accident
The Judge considered the mechanism of the alleged accident to be important. In giving her evidence, the Claimant had no idea as to what had caused her to fall and the Judge found it difficult to comprehend exactly how the Claimant’s arm became trapped in the manner alleged
The Judge, therefore, questioned how he could find there to have been a foreseeable risk of harm when the Claimant herself could not explain how her alleged accident had occurred. The Judge commented that if it was so difficult to understand the alleged accident at trial, it must have been difficult for the Defendant Authority to have foreseen any risk of harm at the relevant time.
Temperature of radiator pipes
The Claimant alleged that the temperature of the radiator pipes during the mid-winter months was higher than that in other months and that this enhanced the duty upon the Defendant Authority. It was argued that this increased the foreseeable risk of harm to the Claimant. No evidence was adduced in support of the Claimant’s argument and the Judge rejected the same, finding that it was highly dangerous to extrapolate from the injury alone that the radiator pipes were at a higher temperature than normal.
One of the Defendant’s witnesses had given evidence that the radiators were hot. However, they were designed to be hot during the winter months and were no hotter than usual for that time. Without any direct evidence in support of the Claimant’s argument, the Judge was not prepared to find that the temperature of the radiators and/or pipes were higher than normal, commenting that it would be unfair for the Court to subject these accounts to deep contextual analysis after this length of time.
No breach of statutory duty
Having considered all of the above factors, the Judge found that there was no foreseeable risk of harm and that the Defendant Authority had not breached the Occupiers’ Liability Act 1957. The Judge considered that to have found otherwise would place too high a duty on the Defendant Authority.
First aid – common law duty of care
The Judge wasted little time in dismissing the Claimant’s allegations regarding the first aid treatment that she had received. The Claimant alleged breach of the Defendant Authority’s common law duty of care, which was a question of fact, and the Judge preferred the Defendant Authority’s evidence as to the same. The Judge found that there was nothing in the Claimant’s evidence that could undermine the Defendant Authority’s evidence and that he was not prepared to engage in attempts to imply anything to the contrary.
Despite attempting to have two bites of the cherry, by alleging breach of statutory duty and/or that the Defendant Authority had failed in its common law duty of care by providing inadequate first aid treatment, the Claimant’s claim was dismissed on both counts and the Claimant ordered to pay the Defendant’s costs, albeit not to be enforced without the Court’s permission as this was a QOCS matter.
The case illustrates how the Court will take account of all the circumstances and several factors before deciding upon any foreseeable risk of harm, upon which liability can stand or fall.