In Christopher Edwards v London Borough of Sutton (2016) EWCA Civ 1005 the Court of Appeal reversed the High Court’s decision which previously found the Defendant Borough primary liable for breach of the Common Duty of Care arising under the Occupiers Liability Act 1957 that they failed to take reasonable care for the safety of their visitor. Unfortunately Mr Edwards fell from a small ornamental footbridge in a park onto a rock or rocks in the water below. The High Court also found that Mr Edwards had been contributory negligent in the accident to the extent of 40%.
Mr Edwards was crossing a small ornamental bridge with his bicycle when he fell over the left hand parapet of the bridge and into the water. The precise cause of his loss of balance was not established on the evidence. There was no relevant trip hazard that might have caused a loss of balance on the surface of the bridge and no reason for Mr Edwards’ bike to pull him to the left was established.
The consequence of the Claimant’s fall was very serious for him. He suffered a spinal cord injury at T11/12 level rendering him paraplegic and wheelchair dependent.
The Claimant argued that the Defendant had failed to take reasonable care to see that: –
1. He, as a visitor to the park, was safe in using the bridge for a purpose for which he was permitted to use it.
2. That the Defendant had failed to warn visitors to the park of the dangers posed by the bridge, the bridge parapet posed their own danger as a pivot point over which a person might fall.
3. The Defendant had failed to carry out any or any adequate risk assessments in respect of the bridge.
4. The Defendant ought to have provided side protection barriers to the bridge in line with “authoritative publications”.
The Defendant argued that there was no breach of duty as: –
1. The bridge had been there for many years.
2. The height, width and incline and construction of the bridge parapets were all obvious features.
3. It was a pleasing (and locally listed) ornamental feature and there was no record of any accident occurring from its use.
The Defendant also argued that: –
1. There was no duty to warn as the use of the bridge whose state and construction was obvious.
2. It had not been shown that the Claimant would have heeded any warning posted.
3. There was no evidence that he would have acted otherwise than he did.
4. There was no obligation to construct side barriers.
The Occupiers Liability Act 1957 provides that an occupier must keep his visitor reasonably safe. It is the word “reasonable” which must be subjectively applied to this case. The activity of the Claimant crossing the bridge with his bicycle could not be seen as a danger for these purposes. The failure to provide guard rails added nothing at all to whatever may be derived as a danger arising from the “state of the premises”. Objectively however there was a danger arising from the “state of the premises”. A bridge with no sides or only low ones, could present a danger from the “state of the premises” such to give rise to the common duty of care. It did not follow that, in order to discharge a common duty of care, arising from the objective possibility of danger, no such bridges should be left open to visitors or should not be left open to visitors without guard rails or expressed warnings.
In Tomlinson v Congleton Borough Council (2003) 3 All ER 1122 it was held that the occupiers of land are not under a duty to protect or even to warn against obvious dangers. A degree of risk was however crucial. If the risk was remote, then it was not reasonable to expect an occupier to take any steps to protect against it, but this should be balanced against the gravity of injury which could occur, the cost of preventative measures and the social value of the activity which gives rise to the risk.
The Court confirmed that there were limits on the social value in a case of this sort, however the amenity of this bridge as a feature in the park should not be ignored entirely.
The Court found that it must have been obvious that there was some risk of a fall and the potential for injury. The approach to the bridge was clear and unobstructed. The width of the bridge and the height of the parapets were also obvious to the eye. The bridge was also over water, with whatever might lie beneath its surface. Any user of the bridge would appreciate the need to take care and any user limiting the width of the bridge is tracked by pushing a bicycle to his side would see the need to take extra care. An important feature was the absence of previous accidents. There was no recorded accident of any character, let alone with the type of consequence that befell Mr Edwards. The probability of such an accident was sufficiently remote that the risk could be regarded as minimal.
The Court in considering the lack of risk assessments, did not see what a formal assessment would have produced, (if anything at all) beyond a statement of the obvious which was that this bridge was with low parapets over water and that persons not exercising proper care might fall off. It did not see how such a finding would have led to steps being taken that would have prevented or lessened the possibility of the Claimant’s accident occurring.
The existence of new standards for side barriers to be fitted to new and different structures did not necessarily mean that an occupier was liable in negligence if an older structure did not meet those standards. However, it did not follow that an occupier was relieved from liability for breach of the common duty of care when an accident, for which a serious risk of occurrence existed, resulted from a dangerous state of the premises which could readily be remedied by proportionate works of renovation. In this case however, there was no requirement to provide the bridge with the type of side barriers advocated on the Claimant’s behalf. Such additions would have altered the character of the bridge significantly and to an extent out of proportion to a remote risk which had never materialised in its known history.
Whilst the injuries suffered by the Claimant are of severe consequence, not every accident has to be the fault of another. An occupier is not an insurer against injuries sustained on his premises. Remoteness of risk is key and that there is no duty to protect or warn against obvious dangers. The visitor must take some responsibility.
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