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Occupiers’ liability - soft play centre - Occupiers’ Liability Act 1957 - negligence

Ross v Monkey Madhouse
3 July 2014
Carlisle County Court

DWF acted for Monkey Madhouse on the instructions of Questgates.

Facts

In 2011 the claimant, a child aged seven years at the time of the accident, was attending a friend’s birthday party at a soft play centre owned by the defendant.  She attended the party with her father who was the litigation friend.

 It was alleged that as the claimant was playing in the higher area of the play centre which contained a large red soft ball (1.7 metres in height), she climbed onto the ball before losing her balance and falling awkwardly onto the floor.  The claimant sustained a fracture of her left humerus which required surgery.

The claim was brought by the claimant under the Occupiers’ Liability Act 1957 and in negligence.  The defendant acknowledged that it owed a duty, but averred that signs were in place warning children not to climb onto the red balls or netting and that it was the responsibility of the parents to ensure that the rules were adhered to.  In addition, it was denied by the defendant that the accident could have occurred in the area alleged given that the red ball had been moved from the higher level to the ground floor level of the play area some 18 months pre-accident and this was supported by photographic evidence.

Findings

Deputy District Judge Griffin dismissed the claim.

  • During oral evidence, it was accepted by the claimant’s father that the accident had occurred on the ground floor area of the play area and not in the higher area as had been alleged.  He maintained, however, that he had to climb 3 or 4 steps to reach the claimant although this was disputed by the defendant.

  • The claimant’s father accepted that he had a duty to both supervise the claimant and to read the signs, but despite this had not warned the claimant about climbing up the netting or onto the red ball.

  • It was the defendant’s case that they carried out annual risk assessments and that the local council also attended annually to carry out safety inspections of the premises.  Indeed, the council had attended some 30 days pre-accident and had not raised any issue with regard to the red ball. The ball had been in use at the play centre since 2001 and up until the claimant’s accident had not been the subject of any other accident and/or complaint.

  • The judge accepted that the claimant had fallen off the ball and that the accident had occurred in the lower area of the play centre although acknowledged that the issue of where the ball was situated was not material to duty of care.

  • The judge found that the defendant had carried out adequate risk assessments and this had been supported by the inspections carried out by the local authority.

  • He found that the claimant must have climbed onto the netting in order to reach the top of the red ball given its size and in doing so had breached two prohibitions which the claimant’s father should have ensured she was warned about.

The judge concluded that the defendant had taken reasonable steps to prevent the claimant’s accident and that this risk had not been repeated by any other child post-accident.  The claim was therefore dismissed.

Comment

  • Although there was no doubt about the claimant’s account of the accident circumstances, under the Occupier’s Liability Act, the defendant was only obliged to show that it had taken reasonable steps to prevent the accident from occurring.

Arguably, this defendant went further because it was to their credit that they had adequate documentary evidence to show that they acted reasonably together with a competent witness to substantiate the system of risk assessing and safety generally. This undoubtedly assisted in the successful defence of this claim.

Contact

For further information please contact Sarah Adams, Legal Executive on 0121 200 0452.  

By Sarah Adams

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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