Fence "injured" neighbour's child

Fence "injured" neighbour's child

Postby JohnP1950 » Sun Jun 01, 2014 6:18 pm

Hi, I am posting this on behalf of my sister. She had a new next-door neighbour move in about a year ago. She hasn't seen them much but has said hello to them a couple of times. They respond in kind but have never seemed to want to speak much - which is fair enough, each to their own.

But a couple of days ago, her neighbour came round fuming and apparently quite abusive, saying that her child had injured himself on my sister's fence (which separates my sister's drive from her neighbour's). Apparently, she had to take the boy to A&E, and they found that he had broken his finger.

The neighbour wasn't very clear about what she wanted my sister to do, but indicated that the fence should be taken down. She said that she was going to see her solicitor to "make a claim for damages".

Obviously, my sister is pretyy upset about this. She doesn't want a child to have got hurt, but equally she thinks it is the parent's responsibility to look after their children, not hers. If the children interfere with my sister's property, why should my sister he held liable. It is not as though the fence is unusual or designed to be dangerous.

Can anyone please advise how she stands?

Thanks.
John
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Re: Fence "injured" neighbour's child

Postby despair » Sun Jun 01, 2014 6:42 pm

without knowing exactly how the child injured himself or what kind or state your sisters fence is in its hard to tell

but if the child was monkeying about or climbing the fence etc then its up to parents to supervise and teach the child some basic manners
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Sun Jun 01, 2014 7:23 pm

despair wrote:without knowing exactly how the child injured himself or what kind or state your sisters fence is in its hard to tell

but if the child was monkeying about or climbing the fence etc then its up to parents to supervise and teach the child some basic manners

Thanks for your reply despair. Sorry I should have explained. My sister's fence is one of those low chain fences strung from posts about 2 feet high. The chain is metal with decorative diamond inserts. Neither the diamonds nor the chain itself have any sharp edges, and they are not designed to form a "dangerous" barrier (anyone could easily step over it). It seems that what happened was the child, who is about two and a half years old, had been sitting on the chain and using it as a swing. Somehow he got his finger caught between the links of the chain.

The fence (if you can call it that) is in a good state of repair, but obviously it is not designed as a child's toy. It is a normal sort of domestic boundary marker so it hardly seems fair that my sister should be held responsible if the parent fails to properly supervise the child. I could understand the parent's anger if the fence had been made of razor wire or something like that, but it is just a normal domestic fence like you can see in any town across the country.

Do you know if there are any laws on this which would clarify liability in this case?

Incidentally, I did read somewhere else on this forum that if a fence owner could reasonably foresee a child's actions, they would be laible if they failed to make the fence safe for the child. Is this true? Because I suppose my sister could perhaps have forseen a child swinging on the chain. But on the other hand the parent had no right to let their child trespass. It's all a little confusing.
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Re: Fence "injured" neighbour's child

Postby despair » Sun Jun 01, 2014 7:40 pm

I assume this chain fence is at the front

in which case what the hell is a 2 yesr old doing swinging on it let alone sticking its fingers in the chain

sorry but your sisters house insurance will cover her but they will soon tell the neighbour that supervision of a 2yr old is the neighbours problem especially out the front
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Sun Jun 01, 2014 8:21 pm

Hi John,

Do you know if there are any laws on this which would clarify liability in this case?

The neighbour... ...said that she was going to see her solicitor to "make a claim for damages".


best just leave it to the sols to explain to the upset parent that she doesn't have a claim.

I did read somewhere else on this forum that if a fence owner could reasonably foresee a child's actions, they would be laible [sic] if they failed to make the fence safe for the child.

can you post a link to this?

Kind regards, Mac
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Sun Jun 01, 2014 8:53 pm

despair wrote:I assume this chain fence is at the front

in which case what the hell is a 2 yesr old doing swinging on it let alone sticking its fingers in the chain

sorry but your sisters house insurance will cover her but they will soon tell the neighbour that supervision of a 2yr old is the neighbours problem especially out the front

Yes it is at the front. Apparently, the mother was doing some tidying up on the drive while the child was sitting / swinging on the chain. My own view is that if the mother couldn't give the child her full attention, he should not really be loose on the front drive. What if he had run out into the street? Would the mother be demanding that cars be banned?

My sister is very upset. She just phoned me to say she took a couple of chocolate bars round for the boy and to see how he was. She didn't get a very good reception to say the least. She says the neighbour told her:

"That @@@@ing fence is coming down. I aint having it. And we are taking advice about your pool as well", and then slammed the door in my sister's face.

My sister has a small fish pond in her garden, which I suppose could be a danger to a young child. The garden is fenced with 5 foot high larch lap so it should keep all but the most determined of children out. Her neighbour surely can't force her to fill in her fish pond can she?
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Sun Jun 01, 2014 8:57 pm

MacadamB53 wrote:Hi John,

Do you know if there are any laws on this which would clarify liability in this case?

The neighbour... ...said that she was going to see her solicitor to "make a claim for damages".


best just leave it to the sols to explain to the upset parent that she doesn't have a claim.

I did read somewhere else on this forum that if a fence owner could reasonably foresee a child's actions, they would be laible [sic] if they failed to make the fence safe for the child.

can you post a link to this?

Kind regards, Mac

Thanks for your advice MacadamB53. I have been looking for that thread again, but can't find it just at the moment. It was a couple of days ago. I will continue looking. Do you know whether that statement is true (I don't think I have misremembered it).
Thanks
John
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Re: Fence "injured" neighbour's child

Postby Brainsey » Sun Jun 01, 2014 9:07 pm

JohnP1950 wrote:Thanks for your advice MacadamB53. I have been looking for that thread again, but can't find it just at the moment. It was a couple of days ago. I will continue looking. Do you know whether that statement is true (I don't think I have misremembered it).
Thanks
John

This thread perhaps? viewtopic.php?f=6&t=19179&p=171668&hilit=fence+child#p171668

There's no way that the neighbour could force your sister to fill in her pond.
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Sun Jun 01, 2014 10:05 pm

Brainsey wrote:
JohnP1950 wrote:Thanks for your advice MacadamB53. I have been looking for that thread again, but can't find it just at the moment. It was a couple of days ago. I will continue looking. Do you know whether that statement is true (I don't think I have misremembered it).
Thanks
John

This thread perhaps? viewtopic.php?f=6&t=19179&p=171668&hilit=fence+child#p171668

There's no way that the neighbour could force your sister to fill in her pond.
Thanks for the reply Brainsy. I don't think that is the thread I was thinking of. i did read it while searching through, but I'm sure the one I am referring to said something more explicit about liability being determined by whether the fence owner could reasonably foresee a child's actions and that the question of the child's trespassing doesn't affect the fence owner's liability. I'll keep on looking.
That's what I thought about the pond. It is just the over protective parents getting things out of perspective. I hope that stops my sister worrying about it.
Thanks again
John
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Sun Jun 01, 2014 11:08 pm

Hi John,

Her neighbour surely can't force her to fill in her fish pond can she?

another one for her sols to put her right about...

Kind regards, Mac
PS any joy finding that thread?
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Mon Jun 02, 2014 12:11 am

This is the thread
http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?f=9&t=1007&p=150732&hilit=fence+injury+liability#p150732

It is the penultimate paragraph of the first post by Angelisle. Not exactly as I remembered word for word, but the gist is pretty much the same as I said.

Pity I didn't use the search facility before! (I could have sworn it was in the Fences forum.)
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Mon Jun 02, 2014 12:24 am

Hi John,

I'm not sure that thread contains anything resembling what you described.

anyway, here's my non-expert, unqualified understanding:

trespasser injures themselves on property that is fit-for-purpose and has no dangerous parts (eg, burglar falls off wall, kid traps finger in chain) = owner not liable

trespasser is injured on property by A N Other (eg neighbour pushes burglar off wall, kid swings chain into mum) = A N Other is liable

trespasser is injured by property (eg burglar falls off collapsing wall, kid catches leg on protruding nail head) = property owner is liable

Your sis has done nothing wrong - her neighbour was trespassing and caused themselves an injury through misadventure.

Kind regards, Mac
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Mon Jun 02, 2014 1:30 am

Yes, the wording isn't quite as I remembered it, but I think it implies much the same thing - that even though a child might be trespassing, a property owner has a duty to make his property reasonably safe wherever a child might be tempted to trespass. The bit I had subconciously added was to equate "make reasonably safe" with "address foreseeable dangers" (which might, or might not, be the same thing).

What you say makes perfect sense MacadamB53. It sounds perfectly reasonable to me. My doubts arose because one wonders sometimes just how reasonable the law is.

Anyway thanks for your advice. It's much appreciated.

John
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Re: Fence "injured" neighbour's child

Postby jonahinoz » Mon Jun 02, 2014 9:14 am

Hi,

Tell your house insurer's NOW, they will advise you what to do. It's probably too late to tell you not to apologise, or take chocolaste to the child, both can be misconstrued, but avoid further contact.

I don't wish to alarm you, but best if you are forewarned ... you neighbour sounds the sort who would contact an "ambulance chaser", no win/no fee. Pass everything onto you insurers without responding. Your insurers may decide that it is cheaper to settle out of court.

Ask your insurers whether you should remove the fence now. Ask your insurers about your pond, they are the one's at risk. In France, swimming pools must be fenced, but I can't remember the rules. There is a lot about fencing pools on Google

Did you erect this fence? I would have thought that the H&SE would have been aware if it was considered dangerous. Ask yourself whether it is capable of breaking a child's finger? Could he have broken it just by falling on it? A&E staff are usually very intertested in how children get their injuries.

You have done nothing wrong. It might be an idea to make sure that your insurance covers Legal Assistance (as distinct from Public Liability). It cost me £15 per year to add it to my policy, but seeing as our new neighbour would sue anybody for anything, it seemed prudent.

John W
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Re: Fence "injured" neighbour's child

Postby Clifford Pope » Tue Jun 03, 2014 10:54 am

One sometimes wonders whether some people have children purely for the peculiar pleasure they get from allowing them to endanger themselves on other people's property. The triumphant delight they get from reporting another injury :)
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