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Trespassing children hurt in surgery garden

Barristers Michael Salter and Chris Bryden offer advice on the extent of a practice's responsibility for public safety

Barristers Michael Salter and Chris Bryden offer advice on the extent of a practice's responsibility for public safety

THE SITUATION

The building which the practice occupies, and which it owns, has a back garden.

This garden is often entered by children collecting footballs kicked over the fence from the fields that back onto the garden.

Recently one of the children hurt themselves in the garden by falling over a rock.

The child's family are now threatening to sue us. What can we do?

THE ADVICE

Even though the practice did not invite these children into the garden, a "duty of care" will be owed to them despite their status as trespassers.

However the extent of this duty is more limited than if the children had been invited onto the premises (for example because they were visiting to receive treatment and the garden was made available as a play area).

The practice will owe a duty to the child if it knew, or could reasonably be expected to know, that the trespassing child was in the vicinity of the danger that ultimately hurt it.

Also if it knew about the danger.

If the practice knew that children were climbing over the fence to collect their balls and that there was a danger in the garden, then it is likely that it will owe these children a duty to protect them from harm while in the garden.

The practice will need to ensure that it has taken all reasonable steps to ensure that the trespasser does not suffer injury.

Obviously, this depends on the exact facts of each case.

The size and resources of the practice will be relevant, as will the fact that the trespassers are children.

Children are more likely to ignore warning notices or to climb fences.

The nature of the risk being guarded against, and the cost of precautions, are also relevant.

Greater protective steps would be needed if the danger was of the sort that may encourage trespassing children – for example a swimming pool.

Simply putting a warning on the fence may therefore not be enough.

It is always advisable, especially when dealing with child trespassers, to "go the extra mile" and take additional steps.

These could include erecting an obstacle preventing access to the premises, or removing any obvious hazard.

The law permits measures aimed at deterrence but not retributive measures such as spikes or ditches.

These may themselves be the cause of an injury which creates a liability.

In the present case therefore, it may be that a claim could be brought against the practice.

But its success would depend on the exact facts.

These would include the nature of the injury, the size, location and nature of the rock that was tripped over, the knowledge the practice had of this as a hazard (if indeed it is a hazard), and various other factors which might amount to a defence.

The practice should make sure that it has insurers in respect of injuries in the garden.

It should also notify its insurer of the possible claim.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Michael Salter is also able to accept instructions directly from readrs of Pulse. Please visit www.michaelsalter.net for guidance on how to instruct him. Legal points are provided for discussion only and are given without obligation. For specific legal advice consult your solicitor or contact Michael Salter via his website

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