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An important judgment for local authorities, other occupiers and their insurers

Edwards v London Borough of Sutton
Court of Appeal 12.10.16

In this important judgment for local authorities, other occupiers and their insurers, the Court of Appeal allowed London Borough of Sutton’s appeal against a finding of primary liability for its failure to “warn or prohibit the use of a bridge” in a public park after the claimant lost his balance and fell into the stream below, suffering serious spinal injuries. Perry Hill and Fiona James draw out the key findings.

Facts

The retired claimant, Mr Edwards, was a lawful visitor to a public park and crossing a small stone “ornamental” bridge with his bicycle when he lost his balance and fell over the low parapet into the stream below, sustaining serious spinal injuries rendering him paraplegic. The precise cause of his loss of balance was not established on the evidence.

The claimant brought a claim for damages against the London Borough of Sutton (Sutton) for breach of the common duty of care under the Occupiers' Liability Act 1957, arguing that no reasonable care had been taken to ensure he was safe in using the bridge. It was argued that Sutton ought to have provided side protection barriers, that they had failed to warn visitors of the dangers posed by the bridge and had failed to carry out any or any adequate risk assessment of the bridge.

Sutton argued that there was no breach of duty - the bridge was 150 years old; the low parapets were obvious features; and there was no record of any accident occurring from its use. It was therefore argued that there was no obligation to construct side barriers nor any obligation to warn as to its use. Sutton also argued that even if a warning had been displayed, there was no evidence that the claimant would have acted any differently.  

Judgment was given in the claimant’s favour but with a reduction of 40% from his damages to reflect his contributory negligence in not taking sufficient care. The court found that no risk assessment of the bridge had been undertaken and the risk of an accident occurring, even though the risk ‘may not have been great’, was not ‘identified and addressed’. The bridge gave rise to an obvious risk of injury because it was narrow and had a low parapet and there was a risk of catastrophic injury due to the height above the stream and the rocks below. The trial judge accepted that the law did not impose any duty for a side barrier to have been fitted but due to the risk of an accident occurring and the likely severity of any injury, Sutton did have a duty to warn users of the low parapet and should have put up signs warning them of the danger and suggesting alternative routes.

Sutton appealed arguing that the trial judge had misapplied the 1957 Act in deciding that the Act required Sutton as an occupier to take reasonable care to keep its visitors safe in using the premises, without looking at the question of whether the bridge was unsafe in the first place.  It was argued that there had to be risk of a kind which gave rise to the duty i.e. a danger due to the state of the premises and it was argued that there was no relevant ‘danger’ in this case.

Court of Appeal findings

The court highlighted the authorities which give guidance on duty of care, the balance of risk and the obligation to warn of obvious danger. The House of Lords in Tomlinson v Congleton [2003] set out the first question for consideration in a claim by a lawful visitor - whether there was a danger due to the ‘state of the premises’". It would be unjust for occupiers to be under a legal duty to safeguard irresponsible visitors against dangers which were perfectly obvious. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice or some lack of capacity, such as the inability of children to recognise danger. In Tomlinson and in Staples v W. Dorset DC [1995] it was held that it was unnecessary to warn an adult of an obvious risk.

McCombe, Arden and Lewison LLJ, allowing the local authority’s appeal and dismissing the claimant’s claim, held:

  • The trial judge had failed to recognise that under the 1957 Act, it was necessary to identify what danger there was before considering to what (if anything) the occupier's duty in each case attached and whether the occupier was required to do anything about it.

  • Ornamental bridges with low walls were likely to be common features of decoration in public gardens. Any structure of this type presents the risk that the user might fall from it. Whilst it was possible for a bridge with low sides to present a ‘danger’ from the ‘state of the premises’, this did not impose a duty on Sutton to ensure that such bridges must be closed to visitors or only left open to visitors with guard rails or express warnings.

  • The seriousness of the claimant’s accident could not be confused with the degree of risk of it occurring in the first place. There had been no previous accidents of any kind and the probability of such an accident was sufficiently remote that the risk could be regarded as minimal.

  • There was no duty to warn of obvious risks. The approach to the bridge was clear and its width and the height of the parapets was obvious. A risk assessment would not have made any difference.

Comment

This is an important decision for local authorities, other occupiers and their insurers who have limited resources to carry out risk assessments and potential alterations to structures within their parks and open spaces which have never proved to be dangerous in the past. 

As the Court of Appeal said:

Not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises…

It is comforting to see that the Court of Appeal clearly had in mind the potential implications of a finding of breach of duty for occupiers managing other similar structures.

There are, of course, many such unprotected bridges up and down the country in all sorts of locations…. Ornamental bridges with low walls, together with water features, are likely to be common features of decoration in public gardens. Any structure of this type presents the risk that the user may fall from it. ….while I am prepared to assume that there was objectively a "danger" arising from the state of the premises in this respect here, does this mean that, in order to discharge the common duty of care, arising from that objective possibility of danger, no such bridges must be left open to visitors or must not be left open to visitors without guard rails or express warnings? In my judgment, the answer to this question is a clear "no".

Of course the fact that Sutton avoided liability in this claim does not mean that an occupier can avoid liability in circumstances where a structure has fallen into obvious disrepair and requires renovation.  But a structure that has always been safe before does not become unsafe because of an unfortunate accident, however tragic the consequences.  

Contact

For further information please contact Perry Hill Partner on +44 (0)207 645 9536 or at perry.hill@dwf.law or Fiona James, Professional Support Lawyer on +44 07921397715 or at fiona.james@dwf.law

By Perry Hill and Fiona James

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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