The Court of Appeal has held (Keown v Coventry Healthcare NHS Trust) that a child who climbed a fire escape, which was not itself in disrepair or dangerous, knowing that there was a risk of falling and that what he was doing was dangerous, was not owed a duty, under the Occupiers’ Liability Act 1984, by the owner of the fire escape. The danger arose because of the actions of the child and not because of the state of the premises.

In 2004, the courts considered the case of an adult who suffered injuries when he dived into shallow water in a lake where swimming was prohibited (Tomlinson v Congleton Borough Council and Another). The House of Lords concluded that the accident had arisen not as a result of the state of the premises but because the man had chosen to indulge in an activity that was inherently dangerous. Where there is an obvious peril and adequate warning signs are posted, there is no absolute duty for the occupier to further protect the individual if they do something which carries obvious risks.

In this case, Martyn Keown was 11 years old when he suffered injuries as a result of a fall from an external fire escape at Gulson Hospital, which was owned and occupied by the Coventry NHS Trust. He fractured his arm and suffered brain damage. Coventry County Court had ruled that the Trust was two-thirds responsible for the accident.

The Court of Appeal ruled that it was a question of fact and degree whether premises which were not dangerous from the point of view of an adult could be dangerous for a child. A duty to protect against obvious risks existed only in cases where there was no genuine and informed choice such as where there is some lack of capacity such as the inability of children to recognise danger.

The Court held that it would not be right to ignore a child’s choice to engage in a dangerous activity in every case just because he or she was a child. In this case, it could not be said that the boy was not aware of the danger. In the Court’s view, the ‘threshold question is not whether there is a risk of suffering injury by reason of the state of the premises. It is whether there is a risk of injury by reason of the danger due to the state of the premises’. For the answer to this question to be ‘yes’, the premises would have to be shown to be inherently dangerous.