In a decision handed down last week in English Heritage v Taylor  EWCA Civ 448 the Court of Appeal upheld a first instance decision of a finding of breach of duty under section 2 of the Occupier’s Liability Act 1957 and a finding of 50% contributory negligence against the claimant. The issues centred around what was an obvious danger.
Summary of the case:
In 2011 Mr Taylor had visited Carisbrooke Castle on the Isle of Wight with his family. They had gone for walk around the castle tower fortifications along the ‘Bastion Walk’ (a recognised path around the site). This path led to an elevated grass firing platform on which were situated two cannons. This platform was flat and surrounded by a low bank. Directly below this platform and at the base of a very steep slope was a grass pathway running along part of the top of the outer bastion wall. At the edge of the path and directly under it was a stonework wall and beneath it a dry moat. There was an informal path (in that the grass had been worn away) down the very steep slope from the platform to the grass pathway. EH’s employees must have been aware of the use of this informal path by visitors.
Mr Taylor and his family were on the platform when he decided to go down the steep informal path in the direction of the grass pathway. He had no recollection of what in fact happened, because he sustained a head injury as a result of his fall, but he must have lost his footing and was propelled across the grass pathway and over the sheer face of the bastion wall into the dry moat. This was a height of at least 10 feet from the bastion wall down into the moat but some 12 to 15 feet from the steep slope and down into the moat.
The issue was whether or not the sheer drop down into the moat was obvious to anyone standing on top of the platform. There were three signs placed by EH around the Bastion walk warning of the sheer drop but no sign was in place on top of the platform.
After a site visit, the recorder at first instance found that the sheer drop was not an obvious danger when looked at from the top of the platform because the presence of the wall was concealed by the edge of the grass pathway; the stonework was underneath it and therefore not visible from the top.
Despite various attempts by EH to disturb this finding, the Court of Appeal found that the recorder’s findings on this were entirely sound and he had had the benefit of a site visit. Because the drop was not obvious, this meant that not only was there a duty to warn of its danger, but also this was causative of Mr Taylor’s injury.
The duty to ensure the safety of the visitor was simply to do what is reasonable. In this case, the Court of Appeal agreed with the recorder’s findings that it was entirely reasonable to expect EH to erect a few more signs warning of this danger, especially when such signs were already in site in other places along the walk. It was not to be expected that EH should impose a barrier of some sort or a fence on top of the stonework wall. Signs alone would have warned Mr Taylor of the sheer drop.
However, because Mr Taylor would have been able to appreciate the very steep slope from the platform down to the grass pathway, he should have descended on his bottom and not attempted to walk down it because the risk would have been there that he might fall down the steep slope. His failure to do so meant that he was 50% contributorily negligent. It was argued that this of itself meant that there should be no finding of liability against EH or that the percentage of contributory negligence should be higher. However, the Court of Appeal readily accepted the argument that the risk undertaken by Mr Taylor in walking down the steep slope without the knowledge of the sheer drop beneath the grass pathway was that of falling down that steep slope with no contemplation of a head injury. The risk of falling down a sheer drop of some 12 feet was a risk of entirely different order of magnitude and involved a risk of serious head injury. He was not warned of that sheer drop so he could not assess that particular risk.
EH were particularly concerned that this case might have further repercussions on how they and other similar organisations deal with safety of visitors to their sites in the future. They were concerned that this might lead to the unwelcome proliferation of unsightly warning signs around historic sites and that this would be contrary to public interest. But the Court of Appeal gave short shrift to this argument and reiterated that the finding of breach of the common duty of care was made on a very specific basis.