T HERE have recently been two cases of remarkable similarity involving
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actions for damages by children which should contain a message of warning to anyone who has occasion to park temporarily disused vehicles on land to which children can gain access. In both cases a child was severely injured anti, although upon the facts of each case the claim for damages was unsuccessful, it would have required but a slight tip of the scales to have cost the respective defendants a lot of money.
Children in law are in a somewhat special category when it comes to examining their ability to take care of themselves, and in consequence other persons' responsibilities towards them are affected. In actions of negligence, as is now probably well known even to the layman, the test of whether a defendant is to be made liable for another's injuries is really twofold: (a) was there a duty towards that particular plaintiff to take care, and (b) in carrying out that duty, was the defendant acting in the way a "reasonable man" would act in his position? If the answer to (a} is no, then the second question does not even arise.
This statement of the law of negligence is, however, affected by many conditions and side issues, one of which is whether a child is involved. If an adult quite voluntarily assumes a stupid risk of some sort without justification, then the person who is the direct cause of injury to that adult as a result will not be liable in law, for the law takes the view that the injured party brought it upon himself. But this sort of attitude is not applied to children of tender years who are recognized as being attracted or "allured" by danger and therefore no longer in the position of trespassers but of licensees. Obviously, the older the child the more common sense it is supposed to possess.
Allurement to Children
Accordingly, if a person leaves something unattended which a reasonable man would instantly recognize as being an allurement to a small child, and that child is injured as a result of indulging in its curiosity, it is most probable that the child can recover damages against the person who, so to speak, left the temptation lying around. Whether it can or not will depend upon whether the child's presence and the nature of the accident could have been reasonably foreseen.
In Perry v. Kendricks Transport, Ltd. (1955), a boy aged 10 was seriously injured by an explosion of petrol fumes from the tank of a disused coach parked near the edge of the defendants' parking ground, which adjoined some waste land where children often played. The explosion was caused by two other small boys throwing a lighted match into the cap-less tank, which had been previously drained off and the cap screwed on by the defendants, who had a regular inspection made of the coaches in the park and who also made a practice of chasing trespassing children away from the coaches. The judge found that the defendants had not been negligent and that they could not be liable under what is known as the strict rule of liability derived from the old case of Rylands v. Fletcher.
This latter rule makes a person absolutely liable for damage caused by the escape of anything he brings on to his own land which is likely to do damage if it escapes.
n21t The classic example is the wild and dangerous animal kept as a pet, but the rule extends to such potentially dangerous things as gas or artificially collected water.
Here the allegedly dangerous element was a disused coach with a tankful of explosive fumes, and it is interesting to note that although the Court of Appeal .dismissed the plaintiff's appeal, it was prepared as a basis for argument to hold that a coach in such a condition was such a potentially dangerous thing.
In that case the defendants had undoubtedly protected themselves by three safety measures they had taken: (I) Leaving the coach with drained tank and cap properly on (the judge found that it had been removed by some unknown person shortly before the explosion); (2) inspecting it at regular and frequent intervals; and (3) doing their best to chase children away whenever they saw them trespassing, and thereby not acquiescing so as to make them licensees. Had they failed in any one of these precautions it is almost certain that the plaintiff would have succeeded.
Lighted Match in Petrol Tank It is interesting to note that one of the grounds upon which the defendants succeeded was that the judges found it difficult to hold that anyone could anticipate that a child would throw a lighted match into a petrol tank, Lord Justice Singleton going so far as to say, "there is nothing to show that it has ever been done before and I hope it will never be doneagain." It is strange, therefore, that only shortly afterwards there should have been an exactly similar case. Adcock v. Loveridge (056).
There a girl, aged 10, had been injured when she herself had thrown a lighted match into the tank of a disused lorry on a bomb site rented by the defendants for the storage of old vehicles. Again, there was no evidence as to whether there was a cap on the tank immediately before the accident but the judge held that as the defendants had turned children off the site whenever they were seen, the plaintiff was only a trespasser on the property.
He further held that the child in any event was an intelligent child who had been expressly Warned not to play with the lorries and he would have found a heavy degree of contributory negligence on her part even if he took the view that she was a licensee on the bomb site and the accident had been reasonably, foreseeable by the defendants. Note that the position would be different in the case of a real toddler allowed to continue playing there.
This type of accident is fortunately rare, but children can get into mischief and hurt themselves in many other ways, for example, by climbing on things, cutting themselves on broken glass or playing with moving parts of machinery, and these two cases show clearly the importance of not tolerating for a moment the presence of unattended children in a place where they have no right to be.
Where possible, property should be securely fenced, but even if this is not done—or rather, even more so where such is the case—children should be turned off at once. Where such supervision is difficult, the added precaution of regular inspections of disused or derelict property is essential.