Posted By John Webster
No. Jumping over a fence is a hazard. Maybe different if he had tripped over a tiny ornamental fence, but this was a deliberate act. Presumably if it had been higher his injuries would have been worse!!

I'm sure somebody will provide a reference to the House of Lords appeal last year by an LA in a case of the guy injured jumping into a pond. The eminently sensible Law Lord stated something along the lines of "The law is not there to protect the foolhardy".

Posted By Jonathan Breeze
The case John refers to is Tomlinson v Congleton Borough Council.

Any internet search should unearth more details.

Posted By Jonathan Breeze
But Richard,

By virtue of the individual jumping over the fence, he was in fact trespassing on anothers property and a lesser duty of care was owed.

This is actually referred to in the Tomlinson case and the following 'bon mot' used:

"When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters."

In the case in question, the housing trust property represents the "house" and the misuse of the fence is represented by the "bannisters".

Care to try again?

Posted By Richard Mathews
Jonathan

We don’t know that he was trespassing. I would suspect that the neighbour probably invited him and it was common practice to take the short cut. Anyway I don’t agree with your “house” and “banister” analogy, which would clearly be foolhardy. I don’t think stepping over a 400mm high fence would be in the same league. Think about it, 400mm or 15.75 inches in old money. The original question was “Fencing Height - is 400mm high a hazard???” Well yes it clearly could be, try setting one up in your workplace and risk assess it. The other question raised by David was: “is this tenant is trying to make something out of a situation of his own causing.” Yes, that also may well be the case.

In Tomlinson v CBC, Lord Hoffmann said "there was nothing about the mere at Brereton Heath which made it any more dangerous than any other ordinary stretch of open water in England". “There was nothing special about its configuration; there were no hidden dangers.” 400mm high fence is a hazard, if CBC had put something in the lake which made it more dangerous than other waters in England the outcome may have different.

Think about it, a 400mm high fence. What is the point of it? What is it supposed to do? Why would you erect a 400mm high fence? To keep out stray dogs? It’s a trip hazard by anybody’s standard.

Richard

Posted By Graham Leech
I think a 400 mm is an accident waiting to happen - it is more than reasonable to assume that people will not see it as a deterrent and try to walk across it - and that someone will trip. Add to this - what about the night - is it fully lit at night? Or is in even higher probability of causing damage?

Either do NOT erect a fence, or put up the barrier a metre or more in height.
My thoughts - hope they help.

Posted By Graham Leech
Back again -
the other issues that would affect the thinking/legal question may include -
what is the ground either side of the 400mm fence?
If there was an earth and shrub border each side - then the fence is more acceptable.
If there is grass or 'hard-standing' either side, then the 400mm fence is a mistake.
Someone has already mentioned - we may not know all the facts - so any judgement is suspect without a full picture.

Posted By MichaelM
Dear Mr Advocate

In the dictionary a fence is:

fence (STRUCTURE) [Show phonetics]
noun [C]
a structure which divides two areas of land, similar to a wall but made of wood or wire and supported with posts

As the "fence hopper" did not use the fence for the intended purpose but decided to jump over without
1) Reading a dictionary (assuming he/she/it can read)
2) Taking fence jumping lessons
I would throw out the case for compensation in terms of H&S.

He/she/it may be due compensation for having been born so stupid and hence having a major disadvantage in life!

The fires of hell await your return.

St Michael

Posted By Richard Mathews
Sorry chaps still shouting for the devil here! Volenti non fit injuria never works as a defence (no pun intended). I don’t see that the dictionary definition of a fence has any relevance and if the town planners want open plan, fine, leave it open and don’t put trip hazards across it.

Richard

Posted By Richard Mathews
Stop it now, or I might take afence!

Posted By nigel Whiteoak
Oh if we only live in a perfect World

I am responsable for open green spaces for a council and have plenty of knee rails around estates, parks and open spaces. The reason for this is to keep cars for driving on the areas and yes they do if there is no rails.
Knee rails do work people can safely stride over them. if you put a higher fence up they would only climb over. where do you draw the line

Nig

Posted By Andy Petrie
I personally have jumped over fences 1m high, as I am sure a number of people have.

Take for example the fences that separate road carriageways and pavements. Living in London it is often the case that the best way to get from a to b is by jumping the fences and crossing the road (at night when there is little or no traffic). If I fell over whilst using these fences would I be able to sue the council for putting them there, I mean surely it is reasonably forseable that someone would try to cross it. (I would not do that of course as I know any accident I had would be my own fault).

It doesn't matter how high you build a fence, someone will try and get over it. Take for example the railway, if someone wants to take a shortcut home they'll scale the fences and cross the tracks. At what point do we become liable, after all it is reasonably forseable that someone would want to do that.