Fence "injured" neighbour's child

Re: Fence "injured" neighbour's child

Postby jonahinoz » Tue Jun 03, 2014 4:08 pm

Hi,

I don't think there is any doubt that the child has a broken finger. Is there any reason to doubt that the finger was broken in the circumstances claimed? OK, I'm a suspicious so and so when somebody demands money.

I "done a Google", came up with this ...

Interestingly, the Occupiers Liability Act acknowledges that "... an occupier must be prepared for children to be less careful that adults ..." [S2 (3)a].

So, in the legal case of Glasgow -v- Taylor [1922] 1 AC 44, a local council was found liable to pay compensation when a young child ate poisonous berries in a municipal park. The judge ruled they should have realised the risk and prevented it. Similarly, in the case of Jolley -v- Sutton LBC [2000] 3 All ER 409, a boy who was injured when a small boat he was playing around with fell on him, was entitled to claim compensation from the council as the occupier of the land on which the accident happened.


Would a reasonable person, looking at the fence, expect a child to injure themselves on it? If so, then the fence manufacturer, and seller, and erector (if used) should also share in any liability. But as already suggested, let the insurers deal with it.

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

Postby Mojisola » Tue Jun 03, 2014 4:20 pm

jonahinoz wrote:Would a reasonable person, looking at the fence, expect a child to injure themselves on it? If so, then the fence manufacturer, and seller, and erector (if used) should also share in any liability. But as already suggested, let the insurers deal with it.


If a reasonable person could have expected this, then shouldn't the mother be to blame for allowing her child to swing on it?
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Tue Jun 03, 2014 4:54 pm

Hi John,

Would a reasonable person, looking at the fence, expect a child to injure themselves on it?

I think you need to ask a different question:

Would a reasonable person consider the fence - performing its function as a physical barrier and/or visual marker - represents a danger to people?

I think the answer is no.

I think this is the equivalent to getting splinters from a timber fence, or scraping your skin on masonry - neither of which I think the owner would be liable for.

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

Postby JohnP1950 » Wed Jun 04, 2014 3:39 pm

Thanks everyone for your comments.

I have just visited my sister. Previously I had spoken to her on the phone and hadn't quite appreciated the full story. What happened was that the child had been sitting on the chain and swinging on it. It must have had its fingers through the links when the fixing loop at one end of the chain broke away from the post. Obviously the child and chain fell to the floor causing the injury. The child also had some bruising to its bottom and legs where the decorative diamonds in the chain became sandwiched between its flesh and the the ground.

The chain fence was in a good state of repair - insofar as it was fit for its intended purpose. But obviously it was never intended as a child's swing.

Does this change anything do you think with regard to liability? (MacadamB53, I think you said that if a trespasser climbed on a wall and it collapsed the householder would be liable; does this seem similar?)

My sister is still waiting for the solicitor's letter. She has public liability on her house insurance and has informed her insurers of the incident. Meanwhile I have suggested that she doesn't make contact with the neighbour.

Incidentally, shouldn't my sister have grounds for a counter claim for damage to her fence?
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Wed Jun 04, 2014 4:23 pm

Hi John,

Does this change anything do you think with regard to liability?

I don't think so.

(MacadamB53, I think you said that if a trespasser climbed on a wall and it collapsed the householder would be liable; does this seem similar?)

I did and I meant collapsed due to poor condition - if the fence was sound I don't think it's similar.

however, I'd expect such a fence to withstand anything a two year old could throw at it...

Kind regards, Mac
PS if it's just the fixings that need sorting I would consider it petty to even ask about pursuing her for damages...
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Re: Fence "injured" neighbour's child

Postby arsie » Wed Jun 04, 2014 5:12 pm

Beg to differ Mac.

It is unreasonable to expect that a low boundary fence of this nature should have been engineered to support a child's weight as any sensible responsible adult will know and as the law will argue, I think.

How ever the OP goes about handling this delicate situation, the neighbouring mother (out of guilt - either the child was swinging on the fence without her approval OR she knew and let the child continue with her tacit approval) is threatening to sue anybody who might be in the least way connected with her failure to keep the child safe. Any damage arising - to child or fence - is almost certainly due to her negligent care of a young child.

So it is not petty to be thinking there is a valid counterclaim. How that is handled - or even put forward at all - is another matter
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Wed Jun 04, 2014 8:10 pm

Hi arsie,

It is unreasonable to expect that a low boundary fence of this nature should have been engineered to support a child's weight as any sensible responsible adult will know

so am I not sensible and irresponsible now?

I have not suggested the weight of "a child" is a design consideration.

I just think a typical two year old is not heavy enough (c25 pounds) to damage a fence of this kind in this way if it is in good nick.

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

Postby JohnP1950 » Wed Jun 04, 2014 10:42 pm

MacadamB53 wrote:I just think a typical two year old is not heavy enough (c25 pounds) to damage a fence of this kind in this way if it is in good nick.

It was in good enough condition to support itself under normal conditions, which I would think is all that should be required of it. There were certainly no outward signs of weakness.

What has happened is that the metal eye, which was screwed onto the side of the wooden post has pulled away, taking the top third of the thickness of the wood with it for a depth of about 10 inches down the post. Clearly the wood split along the grain due to the additional loading. Unfortunately, it means that the entire post is now unusable. It will have to be dug out and a new one concreted in. Although not a grossly expensive job, it will cost a few quid to put right and, frankly, I don't see why the neighbour should get away with allowing her child to cause this expense for someone else - particularly when she has developed such an unduly demanding (and downright abusive) attitude.
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Wed Jun 04, 2014 11:06 pm

Hi John,

I don't see why the neighbour should get away with allowing her child to cause this expense for someone else - particularly when she has developed such an unduly demanding (and downright abusive) attitude.

I get where you're coming from, but it's not really down to what either of us think and the mother is not our neighbour.

just to keep things in perspective, a two year old has done what two year olds do - they've had an accident (always happens the moment a guardian takes their eye off them). two year olds don't appreciate trespass or ownership. the mother has over-reacted, possibly in response to a combination of her feelings of guilt and shame and the parental urge to protect.

yeah, she should have been watching, but she is human and as imperfect as you are.

just tell your sis to get the fence repaired and move on.

only if the neighbour doesn't move on would I change tack.

Kind regards to you and your sister, Mac
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Re: Fence "injured" neighbour's child

Postby arsie » Thu Jun 05, 2014 8:58 pm

MacadamB53 wrote:Hi arsie,

It is unreasonable to expect that a low boundary fence of this nature should have been engineered to support a child's weight as any sensible responsible adult will know

so am I not sensible and irresponsible now?

I have not suggested the weight of "a child" is a design consideration.

I just think a typical two year old is not heavy enough (c25 pounds) to damage a fence of this kind in this way if it is in good nick.

Kind regards, Mac

Increasing the weight of the chain by more than four - from say 8lbs to 33lbs - is clearly going to stress-load the supporting structure: and it did, forcing the 'eye' thread to pull with undue force which fractured the wood of the post. QED.

My 'sensible and responsible' was directed at the neighbouring mother, not you Mac. As you say, she has then over-reacted. Any decent neighbour would make good her offspring's damage or at least offer some contribution. I expect her blustering attitude is to try and head off her responsibility for allowing the fence to be damaged.
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Re: Fence "injured" neighbour's child

Postby JohnP1950 » Sun Jun 08, 2014 3:09 pm

Thanks for the advice everyone. Still waiting for a letter from neighbour's solicitors. Meanwhile I have advised my sister not to approach the neighbour. After having the door slammed in her face, I don't think she wants to speak to her anyway.

I'll post again if there are any further developments, but I suspect it is all bluster as you say.

Thanks again,
John
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Re: Fence "injured" neighbour's child

Postby ukmicky » Tue Jun 10, 2014 9:03 pm

A garden fence is designed to seperate and define a boundary. It is not designed to carry weight and if someone climbs on it and gets injurred they are at fault.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Tue Jun 10, 2014 10:26 pm

Hi ukmicky,

if someone climbs on it and gets injurred they are at fault.

even if that someone is a 25lb two year old and the injury is sustained because the fence collapses?

surely this would only happen if the fence was weak/faulty?

I'm just playing devil's advocate...

Kind regards, Mac
edited to rectify typo spotted by arsie
Last edited by MacadamB53 on Tue Jun 10, 2014 11:13 pm, edited 1 time in total.
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Re: Fence "injured" neighbour's child

Postby arsie » Tue Jun 10, 2014 11:02 pm

MacadamB53 wrote:Hi ukmicky,

if someone climbs on it and gets injurred they are at fault.

even if that someone is a 20lb two year old and the injury is sustained because the fence collapses?

surely this would only happen if the fence was weak/faulty?

I'm just playing devil's advocate...

Kind regards, Mac

At your new reduced weight, the mother should be brought to the attention of the authorities for starving the child to lose 5 lbs from his old weight of 25 lbs!

But your point is still specious. Fences are fit for purpose as boundary markers not as playground facilities. Otherwise the Elfan Safety* lot would insist on putting safety matting down near low fences just in case :roll:

edit: *That isn't your job is it Mac?
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Re: Fence "injured" neighbour's child

Postby MacadamB53 » Tue Jun 10, 2014 11:26 pm

Hi arsie,

Fences are fit for purpose as boundary markers not as playground facilities.

I have not suggested otherwise...

however, a landowner is legally responsible for ensuring anyone visiting the property comes to no harm as a direct result of visiting the property (think burglar suing homeowner after getting injured when scaling rotten staircase).

so, in this instance a two year old visitor sat on a chain hung two foot off the ground (I think it was probably hung closer to one foot if he sat on it...) and sustained an injury when the fixings snapped.

I am playing devil's advocate (see my post from 1st and 3rd June)

Kind regards, Mac
PS I ain't an Elfan Safety worker
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