In Christopher Edwards v London Borough of Sutton [2016] EWCA Civ 1005 the Court of Appeal has held that not every accident on a premises (even if it has serious consequences) must have been the fault of the occupier.
Mr Edwards (‘the Claimant’) sustained a serious injury in September 2010 in Beddington Park which was under the control of the London Borough of Sutton (‘the Defendant’). He and his wife had cycled 3 laps of the park and were walking back to their van in the car park along a pedestrian walkway, each pushing their bicycles. The route along the pedestrian walkway took them along an ornamental bridge. The bridge was narrow and so the Claimant and his wife were walking in single file, with the Claimant ahead.
The Claimant fell over the side of the bridge and onto large rocks, sustaining suffered a spinal cord injury which rendered him paraplegic and wheelchair dependent. He also sustained a tendon avulsion injury to the left arm, a rotator cuff injury to the left shoulder and bruising and lacerations to his head and face.
He brought a claim against the Defendant under the Occupiers’ Liability Act 1957, alleging that the Defendant had failed to take reasonable care to see that he was safe in using the bridge. He argued that the Defendant ought to have erected side protection barriers to the bridge or warned visitors of the dangers posed by it.
At trial, the Claimant’s evidence was that the bike had pulled him to the left but he could not say what had caused the bike to pull away and pull him off balance. The precise cause of the Claimant’s loss of balance was not established on the evidence. No relevant trip hazard on the bridge and no reason for the bike to pull him to the left was identified.
In response, the Defendant argued the bridge had been there for many years (possibly since the 1860s) and that the height, width and incline, and the construction of the bridge parapets were all obvious features. The park was used by 160,000 visitors a year and there was no record of any accident involving the bridge. In the circumstances, the Defendant submitted that there was no obligation to construct side barriers nor to warn as to the use of the bridge.
In the High Court, the Defendant was found to have breached its duty of care under the Occupiers’ Liability Act 1957 and the Claimant was awarded judgement subject to a 40% deduction for his contributory negligence.
The Defendant appealed on the basis that the trial judge had decided that s2 of the Occupiers’ Liability Act required the Defendant to take reasonable care to keep its visitors safe in using the premises without first considering whether the bridge was unsafe. In doing so, the judge had paid insufficient regard to s1 of the Act which provides that the subsequent sections of the Act have effect:
“to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them”.
The Defendant submitted that there first had to be risk which gives rise to the duty and that there was no relevant “danger” in this case.
The Claimant’s Counsel sought to argue on appeal that the danger presented by the bridge was “simple” and the judge did not have to be precise as to how it posed a danger. However, when pressed further on the point by the court, he said that danger “due to the state of the premises” was created by the bridge’s low parapets and the potential for a fall on to rocks.
The Court of Appeal held that not every accident (even if it has serious consequences) must have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises. The standard was set too high by the judge at first instance and judgment for the Claimant was set aside.
This is a useful decision for local authorities and all occupiers of premises. It is a welcome reminder that a Claimant must first establish that the relevant premises were dangerous and then that the Defendant had failed to take such steps as were reasonable in all the circumstances of the case to see that a visitor would be reasonably safe in using the premises.
The degree of risk is central to the assessment of what reasonably should be expected of the occupier and what would be a reasonable response to the existence of that degree of risk. If the risk of serious injury is so remote that it is unlikely ever to materialise, it may be reasonable for the occupier not take any steps to protect anyone against it. Furthermore, an occupier of land is not under a duty to protect, or even to warn, against obvious dangers.
However, it should be remembered that Occupiers’ Liability Act claims tend to turn on their own facts. The absence of any accidents involving the bridge was an important feature in this case. There were no recorded accidents of any character involving the bridge, let alone with the type of consequence that befell Mr Edwards. Had there been, it is possible that the appeal would have been decided differently.
If you would like more information about this development, please do not hesitate to contact any member of Geldards’ Dispute Resolution Team at http://www.geldards.com/dispute-resolution.aspx