Opinion on liability quantum -tort- 2017 PDF

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RE: JASON CONNELL __________________________________________ OPINION ON LIABILITY AND QUANTUM __________________________________________

INTRODUCTORY MATTERS 1. I am instructed to advise on a case involving personal injury sustained by a child, Jason Connell, on a construction site. My specific instructions are to offer an opinion on the potential defendants to this proposed action, the relevant cause(s) of action and, to quantify the claim in terms of pain, suffering and loss of amenity. I am asked to advise on Jason’s legal status as a child and the potential ramifications this has to his cause(s) of action. Lastly those instructing me seek advice on disclosure of the CCTV footage recorded at the site. The advice given is produced on the evidence I have been provided with and is subject to such evidence requested herein or which becomes available in due course.

BACKGROUND 2. At around 5pm on 4th July 2013, Jason Connell, 13, and his brother, 15, kicked their football over the wall of a construction site known as ‘Darlow Ridge’ owned by Barrow Bros Builders (“BBB”), which bordered on to Paradise Park in Darlow. Jason entered the site by a hole in the steel fence, which was some 5m high, in order to retrieve the ball but was unfortunately set upon by an Alsatian guard dog on the premises. His attempts to distract the dog with a stick were unsuccessful and he was bitten on the hand. The dog was eventually called off by the command of a security guard employed by ‘Connaught Security’ (“Connaught”), the security agency at the site subcontracted by BBB. CCTV footage of the event was recorded by the site’s cameras. BBB allege that there were warning signs displayed on the fences, namely 40cm x 50cm boards reading ‘DANGER KEEP OUT’, however Jason and his brother state that they saw no signs in the vicinity to the hole in the fence or at all.

POTENTIAL DEFENDANTS 3. As shall be seen from discussion pertaining to the causes of action below, those instructing me have multiple prospective avenues to pursue. There are 2 potential defendants and 4 distinct causes of action in this case which can be divided as such: (a) A claim against BBB under the Occupier’s Liability Act; (b) A claim against Connaught under the Animals Act 1971 (the appropriate provisions of which are discussed below); (c) A claim against Connaught in negligence;

(d) Criminal proceedings against Connaught under the Guard Dogs Act 1975, s.1.

CAUSE(S) OF ACTION BBB’s liability under the Occupier’s Act 1957 and 1984 4. The law of Occupier’s liability makes a critical distinction between visitors and nonvisitors of land: visitors are afforded a high level of protection under the above named Act, whereas non-visitors operate under the Occupier’s Act 1984 which affords a very minimal degree of protection, and indeed it is my understanding that no adult has successfully sued under it to date. For that reason I would recommend those instructing me to at least attempt to assert a right as a visitor under the Occupier’s Act 1957 as it is far more generous to claimants and, in my opinion, arguable on the facts. 5. Firstly, for duties to be made out under both Acts it must be established that the dog formed a part of the land in the sense that the dog’s presence could be described as part of the ‘state of the premises’. The problem arises otherwise that the dog is not a part of the occupied land for the purposes of the Act (see Revill v Newberry) and defined under Occupier’s Liability Act, s.3(a) (which also applies to the 1984 Act). A related issue to this is the concept of ‘use of land’, which acts to free a defendant from liability if it is the claimant’s use of their land which renders the injury rather than the state of it itself (see Tomlinson v Congleton Borough Council). Here, BBB are alleging that Jason ‘taunted’ the dog and that he therefore encouraged the injury himself. The CCTV footage will dispose of this point and should be requested in accordance with the procedure outlined at paragraph 26 below. 6. Taking the 1957 Act first, the strongest line of argument would revolve around the socalled doctrine of allurement which applies to children under 15. It could be argued that Jason was ‘allured’ by the hole in the fence which he states looked intentional and as if someone had prised it open. Mr. Connell’s statement that Jason “assumed it was OK for them to enter” is indicative of this. However it is a point contested by BBB in their letter of 23rd September 2015 who allege that Jason must have deliberately forced the fencing apart to gain entry. Any evidence which goes to refute this should be obtained: witness statements from local residents including, in particular, any photographs they may have of the fencing’s condition (perhaps in the background of photographs taken at the park). In this way it could be described as a dangerous but attractive element of the land akin to the old boat left on council land in Jolley v Sutton. The enhanced duty of care owed to children by virtue of s.2(3)(a) could also be emphasised, which requires occupiers to prepare for children to be less careful than adults. However the issue is that the football was not an ‘attractive’ object for the purposes of the doctrine as it belonged to Jason himself and not to the land. This, unfortunately, may well prove a sticking point and for that reason it is probably a risky argument to run. Taking into account the modern court’s somewhat deflated protectionism of children, my advice would be that it is probably no more than 25% likely on the facts. 7. Therefore a more solid if not narrower duty is found in s.1 of the Occupier’s Act 1984. Those instructing me must satisfy the three criteria under s.1(3) of the Act, namely that BBB knew or should have known (a) of the danger on their land, (b) that children would be in the vicinity, and (c) that it is reasonable for BBB to offer some protection to such

children. Criterion (a) is easily established as, by reference to BBB’s letter of 23 rd September 2015, they were aware of the dogs kept at the premises and seem to have consented to their use by Connaught. 8. The vicinity principle (b) was explained in Donoghue v Folkstone Properties as whether or not it would have been reasonably foreseeable to the occupier that the claimant would be in the vicinity of danger. Here, the crucial evidence of vicinity is the physical location of the construction site. Mr. Connell in his statement writes that the site backs onto a local park, ‘Paradise Park’, and it is no leap of logic to say that parks, by their nature, attract children. It is therefore reasonably foreseeable that the danger which they kept on their land was in proximity with the children at the park. Those instructing me might look to find out the distance in metres between the said park and the construction site, and produce some photographs if they expose proximity. 9. The final requirement (c) is a wide provision and affords the courts a discretion which they have generally used to restrict liability for non-visitors. However Jason’s youth is a very relevant factor: in Platt v Liverpool County Council the Court found that children who had climbed under a fence to explore a derelict building owned by the Defendant Council were owed a duty under the Act (however it was found that the duty had not been breached by virtue of the Council’s reasonable steps to protect non-visitors, addressed below). Moreover, it is arguable that BBB should have reasonably foreseen that balls and other items might get over their fences if they were not high enough because of the proximity with the park, and that children would be likely to try to retrieve them in such an event. It would therefore be reasonable to expect them to protect against this eventuality. However the largest hurdle with regards subsection (c) is the Cummings v Granger (1997) principle, which states that deterrent dangers (i.e. those aimed at keeping out non-visitors) will not generally give rise to liability for non-visitors. However, the fact that this construction site was so close to an area where children played might by persuasive in making out BBB’s reasonable duty to protect. 10. In terms of defences, if evidence is found which reveals forced entry, this would open Jason up to a potential counterclaim under the Law Reform (Contributory Negligence) Act 1945, s.1. The evidence which I have recommended should insulate Jason in this respect. 11. Lastly, those instructing me must consider s.5 of the 1984 Act which provides for warning signs and reasonable steps to discourage non-visitors. It provides that “any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk”. My advice at paragraph 6 is reiterated regarding evidence about the hole in the fence. BBB will seek to suggest that the fencing was secure and well-maintained, which would help them avoid liability if it were to be proven. Jason and Mr. Connell are clear in that the boys did not see any signs on approach to the hole in the fence or at all. This is a crucial allegation and those instructing me should photograph the fence as soon as possible, assuming it has not since been signposted, and they should measure the distances between warning signs if any are found. BBB allege firmly in their letter of 23 rd September 2015 that signs reading ‘DANGER KEEP OUT’ in large black letters were posted at 10m intervals across the fence on boards measuring 40cm x 50cm. If they are successful in proving this it will give them a strong case under s.5 and so Jason’s allegation that there were no visible warning signs must be supported in evidence. There

is perhaps limited argument in the alternative, if BBB manage to establish warning signs under s.5, that the sign did not indicate the type of danger that lay ahead or was not particular enough so as to have any real effect on children, whom they knew to be in the vicinity. 12. On the basis of the two major contingencies I have outlined, regarding the hole in the fence and the positioning/existence of warning signs, the minor contingency relating to use of the land, and the comparative difficulty in establishing liability under the 1987 Act, my opinion is that liability is currently only 55% likely however this is subject to further evidence on these matters.

Connaught’s liability under the Animals Act 1971 13. The Animals Act 1971 extends tortious liability to the ‘keepers’ of animals, defined under s.6(3) as a person who “ owns the animal or has it in his possession” . Here, it is my opinion that Connaught would bear liability as a company or legal person, rather than any personal liability of the individual dog handlers, as the company owned and maintained the guard dogs for use in the course of their business. 14. The Act imposes strict liability for any damage done by ‘dangerous animals’ and faultbased liability in certain circumstances for damage done by non-dangerous animals (s.2). Whilst the Act judges animals by their subspecies and it is confirmed that the dog in question was an Alsatian, it is my opinion that this is not a dangerous breed per se (indeed it isn’t a prohibited breed under the Dangerous Dogs Act), but rather those instructing me should look to s.2(a)-(c). It is my advice that all three subsections are probably satisfied on the facts, in that the guard dog was likely to cause severe damage if it was not restrained, the likelihood of damage was owing to the aggressive characteristics with which the dog was furnished for its role as a guard dog, and that finally those characteristics were known (and probably in fact bred or trained) by Connaught. The leading case of Mirvahedy v Henley outlined that s.2(2)(b) is satisfied either whether the animal has particular aggressive characteristics (which it seems the dog possessed here), or that it had those characteristics in particular circumstances (which here would be upon perceived intrusion to the construction site). 15. It is a defence to liability grounded on s.2 of the 1971 Act under s.5 if the claimant’s damage was (a) due wholly to the fault of the person suffering it, (b) suffered by a person who has voluntarily accepted the risk thereof or (c) that it was reasonable to keep a protection animal on the premises and the injured person was a trespasser. All 3 defences are potentially arguable from Connaught’s perspective. As mentioned at paragraph 6, those instructing me should attempt to disprove the allegation that Jason taunted the dog, as this might implicate him under subsection (a) and it is also pertinent to the volenti subsection (b) defence. Helpfully for our client, if no such evidence of taunting is found, (b) seems unlikely on the facts as even the warning signs which BBB claim were in place did not state that a guard dog was patrolling. It is also highly doubtful that it was reasonable for the purposes of (c) for Connaught to keep a guard dog untethered in a location which backed onto a children’s park, and indeed this is a criminal offence. If the criminal offence is made out, I advise subsection (c) would not bite (see below).

16. I would estimate that liability under this Act is around 70% likely on the facts, subject to any evidence of taunting and the findings in regards to the handling/tethering of the dog below.

Connaught’s criminal liability under the Guard Dogs Act 1975 17. It is a criminal offence under the Guard Dogs Act 1975, s.1 to keep a guard dog on any premises unless the dog is under the control of a handler who is ‘capable of controlling the dog’ at all times, or otherwise that the dog is secured so that it is not at liberty to go freely about the premises. Asserting this statutory offence would not, as those instructing me will be aware, entitle Jason to any general damages but rather he could only seek a compensation order for the pecuniary damage he has sustained. This will be significantly less than the civil causes of action I have specified and thus it should be viewed in addition to those actions. 18. It is Connaught’s case that the guard dog was under the control of a dog handler 24 hours a day and that the dogs are normally tethered. Regarding the handler, it is admitted that there was a person who called off the dog and so s/he might be termed a ‘handler’ for the purposes of the Act. However it is clear that this person did not have the dog under his control for if he did, the resultant injuries would not have been sustained. It is indicative that the handler was ignoring and/or absent-minded over the dog. Those instructing me should establish the basis of the handler’s version of events: what is his position as to where he was/what he could see/ what he was doing at the time of the bite? What is Connaught’s general policy for their dog handlers? If those instructing me could procure a copy of their policy, they might see if the relevant handler went outside of his duties or otherwise whether the policy itself was not in accordance with their statutory obligations under the 1975 Act. Regarding whether or not the dog was secured, those instructing me should investigate the evidential basis for Connaught/BBB’s defence that the dog was tethered as there seems none. Indeed they only state that this is ‘normally’ the case: this smacks of doubt on their part and I advise that there is nothing presently to suggest the dog was secured. 19. Further, as stated above it seems that Connaught are not disputing the fact that no notice of the guard dogs’ presence was advertised on the fences. This is a further breach of s.1(3). It is my opinion that this criminal allegation is highly persuasive on the present evidence, in the region of 80-5%, and a criminal finding of guilt would buttress the civil actions as evidence of negligence, or otherwise Jason could seek a compensation order if the civil actions fail. Connaught’s liability in negligence 20. In the alternative, those instructing me should pursue a claim in ordinary negligence against Connaught as, by reference to the matters stated above, it is highly arguable that they owed a duty of care to Jason, that damage was reasonably foreseeable (as a result of their proximity to the park amongst other things) and that they breached their duty by failing to properly manage the fencing, failing to provide adequate warning and by failing to control the guard dogs they had placed on the premises.

POTENTIAL DEFENCES

Limitation 21. Notwithstanding Jason’s age, limitation would have been a complete defence to this claim as those instructing me will be aware of the special time limit for damages in respect of personal injury under the Limitation Act 1980, s.11(4), namely 3 years from the date of accrual or date of knowledge if later. Here I think it undisputable that time runs from 4th July 2013, which would have, unhappily, arrived at an expiration date of 4 th July 2016 for the prospective claim. However as Jason was 13 at the time of the alleged breaches, he is deemed to be acting under a disability for the purposes of Limitation Act 1980, s.28 (see s.38(2) interpretation of ‘disability’). Thus the clock runs from his 18 th Birthday, and the time period is extended to a period of 6 years from that date.

Contributory Negligence 22. As stated above, there is a potential risk of a claim for contribution under the Law Reform (Contributory Negligence) Act 1945, s.1. This is on the basis of the following alleged conduct: a. That Jason broke into the site, rather than climbed in through the hole; b. That Jason ignored warning signs displayed on the fences; c. That Jason taunted the dog, rather than being set upon unprovoked by the dog. These two items will be disposed of only by further evidence, of which I have made recommendations in the preceeding and proceeding paragraphs of my advice.

QUANTUM 23. The property damage amounting to £100 would be recoverable under Occupier’s Act 1957, the Animals Act 1975 and under ordinary negligence as Jason would not have suffered this loss had the torts not been committed. However the £100 would not be available under Occupier’s Act 1984 by virtue of s.8 which prevents the recovery of property damage for non-visitors. It would also not be available in the criminal proceedings except by way of compensation order. 24. Jason’s injury is, in my opinion, properly to be regarded as a moderate hand injury under bracket (g) of the Judicial College Guidelines for hand injuries. I advise that it is towards the lower end of that bracket as an injury which is ‘permanent but non-intrusive’. It is, however, relevant that this is his right dominant hand and also that the medical report discloses a potential handicap to the choice of future employment and the permanent grip weakening. I note similarities with the case of Blanchard v Lancashire where there were minor symptoms for 3 years, where here most pain had diminished after 6 months but there is permanent weakening, and that there was a permanent visible scar. The award there was £4,278.11. However due to the permanence of the grip weakening the case of Bibi v Hogan offers comparison: the claimant in that case had ongoing pain (probably to a greater degree than in the present case) and was unable to make a tight fist. The award there was £10,854.40. I would therefore estimate an award for PSLA of somewhere in the middle, in the region of £7,000.

FURTHER ADVICE

Disclosure of CCTV Footage 25. I have advised that some of the core issues hinge on CCTV footage of Jason once he entered the construction site. I advise that this should be requested in line with the ordinary pre-action disclosure rules of the PD Pre-Action Protocol and those instructing me should first endeavour to obtain it informally through an email request. However failing this, it will be possible to apply to the Court under CPR r.31.16 for pre-action disclosure of material which is required to dispose fairly of the anticipated proceedings, to assist the resolution of the dispute and to save costs under r.31.16(1)(d)(i)-(iii...