This was an appeal by the claimant from the first instance decision dismissing a claim for damages arising from an accident. A child, K, was playing in a communal garden controlled by Portsmouth City Council. She tripped on stone in a gravel path leading to the garden and sustained an injury resulting in the loss of sight to her left eye. A claim was brought under Section 2 of the Occupiers Liability Act 1957. The claimant's case was that the path was unsafe and should have been properly compacted or produced in a different material. The surface was made of "hoggin" which is basically a mixture of flint and clay. Hoggin is often used in areas where people might walk. The council's contracts manager considered that hoggin was unsuitable for play areas and unsafe for use in areas where children might play. Nonetheless the first instance the judge considered that the council was not negligent nor in breach of any statutory duty.
The claimant appealed on the basis that the whole area was unsuitable because was foreseeable that children would play in the area and could be injured.

Reference

The surface of the playground area was adequate. K was injured not in the playground but on a pathway leading to it. A better surface on the pathway leading to the playground might have reduced the risk of children being injured, however, whether the council had discharged its duty was a matter of fact and degree. The judge at the first instance had applied the correct standard of care and there was no flaw in his reasoning. There was no reason to require a higher duty of care in respect of the council for pathways leading to playgrounds, and so the appeal was dismissed.

*Full case details
Kidd (A child acting by a litigation friend) vs Portsmouth City Council, 14 January 2004, Court of Appeal, Tuckey LJ, Dyson LJ, Jacob LJ.

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Postscript

Cases involving injury as a result of tripping over pavements or other surfaces are common. Councils frequently find themselves liable for such accidents, on the basis that they have a duty not only to repair pavements in order to avoid trip hazards but also to ensure that the surfaces are appropriate for the particular use of that area. In this case a child was injured on a pathway leading to a playground. The council's own evidence was that the pathway material "hoggin" was not appropriate for a playground. Nonetheless, the court held that as the child was injured on the pathway leading to the playground and not in the playground itself then the hoggin material used for the pathway was acceptable and the council would not be liable for the loss of sight to the child's left eye.