Occupiers Liability and the duty owed to Trespassers
Wray v Derry City and Strabane District Council  NIQB 39
Murphy O’Rawe recently acted on behalf of the Defendant Council in a claim brought by the plaintiff who sustained significant injuries to his left arm when he slipped and caught his left arm on protruding wires whilst climbing a fence.
The accident occurred on 29 June 2013. The plaintiff, who was 13 at the time of the incident, had entered a sports complex at the Melvin Sports Centre by climbing over a fence somewhere between 3.30 – 4.30pm with a group of others. The facility closed at 5.00pm and the incident occurred around 6.30pm, as the plaintiff exited the facility by again climbing over the fence.
In order to climb over the fence, the plaintiff stated he used one foot to climb up onto a latch type device on the inside door of the locked exit. From this point he then launched himself forward and upwards using the toe of his trainers as a foothold within the wire fence. He then pushed upwards and over the fence however he slipped and as a result caught his left arm on the protruding wires of the fence.
The plaintiff stated that not only was it common for him to climb over the subject gate but may others, both on the date of the accident and on other occasions, did so. The plaintiff alleged it was well known to staff at the Centre that climbing over the fence was common practice and it was also common for staff to be aware of people being inside the Complex playing football at closing time.
Around the totality of the complex was a fence measuring 2.4 metres high which had been installed in approximately January 2004. The defendant gave evidence at the hearing that the fence had been put in place as a control measure, as the Complex had previously suffered from vandalism, graffiti and drinking within the grounds by underage youths. It was not in dispute between the Consulting Engineer experts for both parties that the fence and gates within it met the relevant British standards.
The Plaintiff’s claim was brought under Article 3 of the Occupiers’ Liability (Northern Ireland) Order 1987.
The Judge was required to determine a number of issues Under Article 3 (3) of the 1987 Order;
Mr Dermot Fee QC who appeared for the Plaintiff relied in particular on the case of Haughian v Northern Ireland Railways Co Ltd  NIQB 44 which involved a trespasser who had injured himself in the course of climbing a fence. In Haughian, Kerr J considered that the fence was a danger to anyone who tried to climb over it, as the top of the fence had sharpened spikes which were capable to inflicting injury. The second issue was whether the defendant was aware of or had reasonable grounds for believing in the existence of the danger. The plaintiff claimed that he and his friends had used a prised down section of the fence on a number of occasions to enable them to climb over the fence. The Judge considered that the defendant was aware that a section of the fence had been prised down and that young people were known to trespass on the rail track and waste ground beside it. The defendant had reasonable grounds for believing young people were climbing over the fence therefore ought to have known that young people were at risk of injury because they were using this part of the fence to gain access to the area.
Mr Millar BL for the Defendant relied in particular on Phillips v South East Education and Library Board  NIQB 91. In Phillips, the plaintiff was an 11 year old boy who had been playing with other boys on ground adjacent to a Nursery School when the school was closed. One boy kicked a ball over the fence and the plaintiff tried to climb over the fence however in doing so, slipped and sustained a significant injury to his left hand. There was no issue that the plaintiff at the material time was a trespasser so that the terms of the 1987 Order applied to him. The fence met the relevant British Standard and had been put in place due to a pre-existing problem involving young people and vandalism. In addition, the fence had vertical protrusions at its top however these were not sharp and not viewed by the Judge as ‘spiked’. The Judge held in Phillips that it had not been shown that the fence itself was a danger with the consequence that Article 3 (3) of the 1987 Order had not been satisfied.
Dismissing the claim, Mr Justice Maguire held the fence had not been shown to be dangerous as it was consistent with the guidance found in the relevant British Standard and was commonly found as a control measure at a wide variety of facilities throughout Northern Ireland.
When coming to finding of facts, the Judge considered the purpose of the fence was and is to keep intruders out and commented, “a moment’s study of the fence will disclose (even to a person of 13 years, the plaintiff’s age at the time of the accident) that it was not intended that the fence be scaled and that the presence of the vertical protruding wires at the top of the fence was to make the scaling of the fence more difficult”.
The Judge noted the case was distinguishable from Haughian as placing a hand or hands on the protruding wire at the top of the fence, in itself, would not be injurious.
The court was satisfied that the risk which arose in this case derived from the activity of the Plaintiff and not by reason of anything which the defendant had done or omitted to do. Like Deeny J in Phillips, the Judge held that a sign which warned against persons climbing it was unnecessary as the risk was not one which required other measures for the protection of the plaintiff.
As such the Plaintiff’s claim was dismissed.