I was going around Kew Gardens in South West London recently on one of those rare days in a British Summer where the sun was actually shining. For those of you who have been, or can imagine, the park has a huge variety of different plants all of which grow, as one would expect, namely straight up, towards the sky.
Two issues struck me as I was walking around the park...
The first was that I almost had my eye poked out by a mangrove tree, which you will recall from watching nature programmes (which is the first time that I have seen such a tree), the roots grow downwards out of the branches. They were therefore hanging down at a convenient level to poke an eye out.
The second was that I saw a number of children, as we have all done in our childhood, climbing trees - which in my opinion is an excellent pursuit!
From a personal injury perspective however, the question arises as to what would be the case if one did have one’s eye poked out by a trailing root from a mangrove tree or indeed if a child fell from a tree whilst climbing it and sustained an injury.
Both points are dealt with by the Occupiers Liability Act. The occupier is of course the owner of the park who has a duty to ensure that the 'property' is reasonably safe. In fact this duty extends to all occupiers, including ourselves if we own property that people come onto property as they do during the course of the day, friends, relations, postmen etc. The emphasis is upon the word reasonable. The Court will require any Claimant to establish that the occupier ought to have foreseen the risk and acted reasonably in the circumstances.
If, therefore, someone comes onto your property where you have dug a large hole in the front garden and falls down that hole because you have not taken reasonable steps to ensure that it is covered or guarded, that person is likely to be able to bring a claim against you.
If however you are visiting a park and you walk into a mangrove root which conveniently is hanging at eye level, the Court will look, as it does in such cases, at all the circumstances. It will say that first of all you should have been looking where you were going and secondly, that Kew Gardens in particular is the sort of park where there are a variety of different plants. As a visitor to Kew Gardens you ought to appreciate that fact and been aware of your surroundings, and taken note of any hazards that might be in front of you.
This does not mean that the park keepers at Kew Garden can quite happily dig a hole and leave it unfenced. Instead the mangrove root is a natural phenomenon from a tree that the park has within its grounds and you would therefore be very unlikely in my opinion to succeed in a claim.
As far as the child climbing on the tree is concerned the Court will again look at the circumstances. Unless the park encourages children to climb the tree without putting any safeguards in place or indeed where there have been previous accidents where children have fallen from this tree and the park has not taken any steps to prevent further accidents occurring, you are unlikely to succeed in a claim.
In particular there have been numerous cases over the last few years where the Courts have tried to ensure that parks, schools etc allow children to run free to the same extent as we did years ago. It will however, expect all reasonable steps to have been taken to ensure the child’s safety. Parks will therefore be required to ensure that play areas have soft materials or a spongy floor, such as when a child plays on a climbing frame it is reasonably foreseeable that the child might fall from that frame. It will expect schools when going on a school outing, to ensure that there are a suitable number of adults per child to make sure that the children are appropriately looked after.
It is therefore very much a case of being sensible and therefore reasonable in all the circumstances and whilst any claim should be given consideration, the Court will nevertheless apply the test of reasonableness.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form or email firstname.lastname@example.org and one of our specialist personal injury team will review your compensation claim for free.