By Bronia Hartley
In this recent and interesting case, Lord Justice McCombe’s judgement represents a comprehensive reminder of how the duty on occupiers imposed by the Occupiers’ Liability Act 1957 should be approached.
The defendant, the London Borough of Sutton (“Sutton”), brought an appeal against the decision of Judge Gore QC (sitting as a Judge in the High Court) whereby he ordered that judgment be entered for the claimant, Mr Christopher Edwards (“Mr Edwards”) for 60% of such damages as were assessed in his favour in respect of personal injury sustained by him in an accident in a public park under the control of the defendant.
The Judge found Sutton to be primarily liable for breach of the common duty of care arising under the Occupiers’ Liability Act 1957 in respect of serious injury sustained by Mr Edwards when, on 10 September 2010, he fell from a small ornamental footbridge in the park onto rocks in the water below. The Judge found Mr Edwards to have been contributorily negligent in the accident to the extent of 40%.
Permission to appeal was granted to Sutton, who argued that the Judge was wrong to find it liable at all to Mr Edwards for the injury sustained and permission was also granted to Mr Edwards to appeal against the judge’s finding that Sutton was under no duty to provide better side protection for the bridge and against the finding of contributory negligence that the judge made against him.
On the date of the accident Mr Edwards was 64 years old and he and his wife had decided to take up cycling as a form of exercise. They decided to make an initial practice ride, largely for Mrs Edwards’ benefit, around Beddington Park in Sutton. The park had a circular route amenable to cyclists and pedestrians but also a separate walkway for pedestrians only. The ornamental bridge in question in the proceedings is situated on the walkway. After completing some three circuits Mrs Edwards and his wife were walking back to their van, pushing their bicycles. Mr Edwards was a short distance in front of Mrs Edwards.
The bridge’s track was arched and about 3.28 metres in length and the width was 0.85 metres. The parapets on either side were 0.26 metres on the left (about knee height) and 0.30 metres on the right.
Mr Edwards’ evidence was that he was pushing his bike on his left hand side using both hands, so that it was between him and the side of the bridge. He said that all of a sudden he was aware of his bike pulling away from him and pulling him off balance. He tried to keep his balance but was unable to and fell over the side of the bridge onto the large rocks in the water below.
Mr Edwards suffered a spinal cord injury at T11/12 level, rendering 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 a laceration to the head and face.
The precise cause of Mr Edwards’ loss of balance was not established on the evidence. No relevant trip hazard that might have caused a loss of balance was identified on the surface of the bridge and no reason for Mr Edwards’ bicycle to pull to the left was established.
THE PARTIES’ CASES AND THE JUDGE’S DECISION
For Mr Edwards it was said that Sutton had failed to take reasonable care to see that Mr Edwards as a visitor to the park was safe in using the bridge for a purpose for which he was permitted to use it. It was argued that Sutton ought to have provided side protection barriers to the bridge of some 1.1 metres in height, in line with “authoritative publications” such as a British Standard Specification for Pedestrian Restraint Systems (1995). Further or alternatively, it was said that Sutton “failed to warn visitors to the park of the dangers posed by the bridge”. It was said that the bridge’s parapets posed their own danger as a pivot point over which a person might fall. Further, it was added, Sutton had failed to carry out any, or any adequate risk assessments in respect of the bridge.
For Sutton it was argued that there was no breach of duty. The bridge had been there for many years (perhaps since as long ago as the 1860s). It was urged for Sutton that the height, width and incline, and the construction of the bridge parapets were all obvious features. It was a pleasing (and locally listed) ornamental feature and there was no record of any accident occurring from its use. In such circumstances, it was argued, there was no obligation to construct side barriers. Nor was there any obligation to warn as to the use of the bridge whose state and construction were obvious. Sutton argued that it was not shown that Mr Edwards would have heeded any warning posted; there was no evidence that he would have acted otherwise than as he did.
The Judge at first instance made the following assessment:
“In my judgment, this evidence in the round shows, firstly, there was never a formal structured assessment of risk presented by this bridge to pedestrians. Secondly, there were scant physical inspections of it, other than perhaps walking inspections annually, concentrating, in my judgment, on the integrity and safety of the surface from the perspective of tripping hazards and no more. Thirdly, there were surface integrity issues such that in 2014 a tarmac fillet was placed to rectify a tripping hazard on the ascent as approached from where the claimant had come. Fourthly, the photographs taken by Mrs Edwards, especially that at trial bundle page 95, show clear potential to trip at the point where the tarmac of the pathway meets the paved surface of the bridge itself. Fifthly, as was conceded by Mr. Scandachanmugarasan in terms, the low parapet could be dangerous. Sixthly, neither when the bridge was constructed nor to this day have there been any applicable standards to which this bridge was required to conform. Seventh, there is no, let alone any relevant, history of accident or of injury or of complaint.”
The claimant’s case is that the defendant’s duty extended to taking reasonable care for those who attended the park. This duty, the claimant submits, extended to those visitors who use the bridge. To the contrary, the defendant’s case is that on no basis can the defendant be held responsible, because there was nothing unsafe about the premises and neither was there a breach of duty under the Occupiers’ Liability Act 1957, nor did the defendants owe or were in breach of any other freestanding duty of care. I was attracted to begin with by the submission of Mr. Warnock that there was nothing whatsoever wrong with the state of the premises. On mature reflection, in my judgment, that misses the point and the language of section 2 of the 1957 Act which does not demand safety of the premises, as such, as a state, but demands that the visitor be “safe in using” – I emphasise that word – “the premises for the purpose for which he or she is invited or permitted by the occupier to be there”. This is in marked distinction, for example, to the position under the Occupiers’ Liability Act 1984 governing the liability of occupiers to trespassers, because section 1(1)(a) of that statute provides in terms that it regulates whether a duty is owed by reason of any danger due to the state – and I emphasise that word – of the premises.
In my judgment, whether reasonable care has been taken in all of the circumstances to see that a visitor will be reasonably safe if using the premises depends at least in part upon what is foreseeable or, to adopt the language of the editors of Clerk and Lindsell on Torts at paragraph 2-149 whether the accident was “within the scope of foreseeable risk”. Reliance may be placed in this regard upon the decision of the House of Lords in Hughes v Lord Advocate (1963) AC 837, not cited by either Mr. McDermott or Mr. Warnock, but referred to by me in the course of submissions during the case where the fact that the damage occurred in an unforeseeable way was held not to mean that it was not foreseeable in a sense relevant in the law. Thus the House of Lords was able to hold in that case that even though the extent of the pursuer’s injury was not foreseeable and the precise chain of events leading to his injury was not foreseeable, nonetheless his claim succeeded. Thus, even if the precise chain of events leading to the accident was not foreseeable, not perhaps the extent of the injury sustained by the claimant, since injury due to fall, for example, in the event of trip was foreseeable, so liability could follow.”
The Judge then referred to Tomlinson v Congleton BC  1 AC 46 and said:
“The difficult balancing exercise, it seems to me, requires me to consider the degree of risk of injury, the seriousness of injury if it were to eventuate, the cost or ease of avoiding it and the amenity value or social value of the premises and the activity being undertaken and it is the degree of risk amongst those four factors that is the most important factor.”
The Judge recognised the authorities, cited to him by counsel for Sutton, in which occupiers have been held not to have to modify existing premises built in accordance with prevailing standards at the time of construction: McGivney v Golderslea Ltd (1997, unreported) and Japp v Virgin Holidays Ltd  EWCA Civ 1371. The Judge cited the judgement of Richards LJ in the second of these cases as follows:
“Where the question is whether a structural feature of a building complies with local standards, the starting point must be the standards applicable at the date of design and construction, which in this case means those applicable at the date when the balcony doors were installed. There will be circumstances where changing standards make specific provision for further action to be taken in relation to a structural feature of an existing building (the regulations relating to the removal of asbestos may provide an example). Subject to that, however, I do not think that there can be a duty to engage in a constant process of updating of existing buildings, by rebuilding or refurbishment, so as to reflect changes in standards”.
On risk assessments, the Judge quoted Smith LJ in Uren v Corporate Leisure (UK) Ltd  EWCA Civ 66 as follows:
“I would not wish judges to have the idea that risk assessments are unimportant and can never affect the outcome of a claim. I would not wish them to think that all that matters is an objective assessment of safety by the court. Sometimes the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside.”
The Judge found that the law did not require Sutton to fit side railings to the bridge. However he found that Sutton should have warned users of the low parapet. He put it this way:
“I accept the submissions that the law does not on the facts I have found impose a duty to fit railings and, therefore, I reject the claimant’s case on that point. However, if, as the occupier is entitled on that finding to do, it does not protect a place that gives rise to a foreseeable risk of catastrophic injury, it must take other measures, in my judgment, that do not involve the reconstruction or rebuilding of the structure in order to protect users. It must, in my judgment, at the very least warn users of the dangerously low parapet on this narrow bridge and either caution them to particular care, or divert them to other easily available or safer routes towards the car park destination. Such steps involved no significant cost on the evidence before me. They would not in any way reduce the amenity value of the bridge in the way that it was suggested by Mr. Warnock that the amenity value would be affected by the construction of railings which he implied would be so unsightly as to take away from the visual attractiveness of the bridge.
A warning sign would not cause the same amenity offence. I am satisfied that the claimant was a sufficiently compliant individual that he would have heeded such a warning had it been made.”
“However, I am also satisfied that absent any demonstrated reason for his loss of balance that did not involve any fault on his part, for example, fainting or dizziness or the like, the danger of this bridge called for a degree of vigilance in crossing it that he simply cannot have exhibited. It matters not for this purpose whether he tripped or lost his balance because he was looking away to his wife or elsewhere, albeit that I have found that he was not at the time. Also, admittedly somewhat speculatively, I ask why did he not just let go of the overbalancing bicycle. Mr. McDermott’s reply “momentary inadvertence” is no real answer. He needed to be particularly vigilant. He knew it was a particularly narrow bridge. He could see the parapets were particularly low. He failed to negotiate it safely and he offers no exculpatory reason why that was so. Whatever caused him to lose his balance and fall, therefore, in the absence of an exculpatory reason like a faint or attack of dizziness, must have been both blameworthy and causatively potent. However, the primary responsibility, in my judgment, lay with the defendant.”
THE APPEAL AND CROSS-APPEAL
The grounds of appeal raised six points against the Judge’s decision:
1.The Judge misapplied the 1957 Act in deciding that section 2 of the Act required Sutton as an occupier to take reasonable care to keep its visitor safe in using the premises without regard to the question of whether the bridge was unsafe in the first place. Counsel for Sutton argued that the Judge paid insufficient regard to section 1 of the Act which provides that the following 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”.
2. There has to be a risk of a kind which gives rise to the duty, i.e. a danger due to the state of the premises. Counsel for Sutton submitted that there was no such “danger”: the bridge had no trap; the fact that it was humped and had low parapets with a narrow path over water was obvious to anyone using it. In its long history there was no recorded incident of any kind involving anyone falling off the bridge. Further it was said that Sutton were entitled to expect that Mr Edwards would take reasonable care for his own safety.
3. There is no duty to warn of the obvious. The judge speculated as to various ways in which an accident might happen on the bridge without concentrating upon whether Mr Edwards’ accident was reasonably foreseeable. It was argued that the judge made the error identified by Lord Hobhouse of Woodborough in Tomlinson (in paragraphs 79 to 80) in confusing the seriousness of an outcome with a degree of risk that that outcome will occur. It was not possible to say that there was no risk because Mr Edwards suffered the accident. However, the question was, it was submitted by counsel for Sutton, whether the risk was objectively sufficient in magnitude to trigger the duty.
4. The Judge was wrong to rely on the absence of a formal risk assessment. What an assessment would have concluded must be considered. An assessment would not have contributed to the avoidance of this accident.
5. A warning sign could only have been a warning against what was entirely obvious.
6. Causation was not established as Mr Edwards did not give evidence that he would not have taken the bridge in the face of a hypothetical warning of its character.
Counsel for Mr Edwards invited the court to consider whether the conclusion of the Judge was one which was open for him to reach. It was submitted that the conclusion reached by the Judge was “within the generous ambit within which disagreement is possible”.
It was pointed out that one of the witnesses called by Sutton acknowledged that a danger was presented by the low bridge parapets and, it was argued, mere knowledge of a danger on the part of an injured party is not enough to excuse the occupier; the injured party needs to know enough about it to enable him to avoid the danger and to be reasonably safe. Next, he argued that the Judge did properly consider the safety of the bridge in the context of visitors to the park generally, including Mr and Mrs Edwards and children visitors. Further, he argued that the Judge properly considered the care to be taken by the likes of Mr Edwards as reflected in his findings on contributory negligence. Finally, in addressing the foreseeability and likelihood of risk, Counsel for Mr Edwards cited the fact that the Judge said, during an exchange with counsel for Sutton, that there are “many, many obvious ways in which you could lose your balance”.
DISCUSSION AND CONCLUSIONS
The judge at first instance perceived there to be a contrast between the provisions of the 1957 Act and the parallel provisions of the Occupiers’ Liability Act 1984 regulating the duties owed to persons other than visitors, i.e. principally trespassers. The judge said that section 2 of the 1957 Act did not demand the safety of the premises as such but that the visitor be “safe in using the premises for the purpose for which he or she is invited or permitted by the occupier to be there”. He contrasted this with the words of section 1(1) of the 1984 Act which provides as follows:
“(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine-
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b) if so, what that duty is.”
The Judge was wrong to make this distinction; the terms of section 1 of the 1957 Act and section 1(1) of the 1984 Act are not materially different in the relevant respects. Both Acts regulate the different duties imposed on an occupier, in respect of visitors and others, “[in respect of dangers/by reason of any danger] due to the state of the premises or things done or omitted to be done on them”.
It is therefore necessary to identify what danger(s) there is/are before one can see to what (if anything) the occupier’s duty in each case attaches. The judge did not focus adequately on this issue.
The court considered that the only feature of “danger” from the physical state of the bridge was the low parapet. In assessing whether that danger was such as to trigger the duty under the Act, Lord Justice McCombe said the following (emphasis added):
42. One can see that an unfenced bridge or a bridge with low parapets will present more danger of a fall than would a bridge with high guard rails. There are, of course, many such unprotected bridges up and down the country in all sorts of locations. In argument, we discussed golf courses, where plank bridges, with no side rails, crossing over ditches are common and have to be negotiated by golfers with trolleys. 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. Unlike natural land features, such as steep slopes or difficult terrain or cliffs close to coastal paths, which Lord Hobhouse in Tomlinson said could hardly be described as part of the “state of the premises”, it seems to me that a bridge with no sides or only low ones may present a danger from the “state of the premises” such as to give rise to the common duty of care. However, 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”.
43. The reason for this answer lies, I think, in two well recognised principles of law. First, there is the proper treatment in law of the concept of risk. Secondly, occupiers of land are not under a duty to protect, or even to warn, against obvious dangers. Both these propositions appear in the speeches in Tomlinson case.
44. The first proposition can be taken from the speech of Lord Hobhouse at paragraphs 79 and 80 as follows:
“79. To suffer a broken neck and paralysis for life could hardly be a more serious injury; any loss of life is a consequence of the greatest seriousness. There was undoubtedly a risk of drowning for inexperienced, incompetent or drunken swimmers in the deeper parts of the mere or in patches of weed when they were out of their depth although no lives had actually been lost. But there was no evidence of any incident where anyone before the claimant had broken his neck by plunging from a standing position and striking his head on the smooth sandy bottom on which he was standing… The park had been open to the public since about 1982. Some 160,000 people used to visit the park in a year. Up to 200 would be bathing in the mere on a fine summer’s day. Yet the number of incidents involving the mere were so few. It is a fallacy to say that because drowning is a serious matter there is therefore a serious risk of drowning. In truth the risk of a drowning was very low indeed and there had never actually been one and the accident suffered by the claimant was unique. Whilst broken necks can result from incautious or reckless diving, the probability of one being suffered in the circumstances of the claimant were so remote that the risk was minimal. The internal reports before his accident make the common but elementary error of confusing the seriousness of the outcome with the degree of risk that it will occur.
- The third point is that this confusion leads to the erroneous conclusion that there was a significant risk of injury presented to the claimant when he went into the shallow water on the day in question. One cannot say that there was no risk of injury because we know now what happened. But, in my view, it was objectively so small a risk as not to trigger section 1(1) of the 1984 Act, otherwise every injury would suffice because it must imply the existence of some risk. However, and probably more importantly, 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. The response should be appropriate and proportionate to both the degree of risk and the seriousness of the outcome at risk. If the risk of serious injury is so slight and remote that it is highly unlikely ever to materialise, it may well be that it is not reasonable to expect the occupier to take any steps to protect anyone against it. The law does not require disproportionate or unreasonable responses.”
The court went on to consider the balance of risk, gravity of injury, cost and social value. Lord Hoffman’s speech in Tomlinson was quoted again:
“My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.”
The court considered that there were limits on ‘social value’ as a consideration in Mr Edwards’ case, but said that the amenity of the bridge as a feature in the park should not be ignored entirely.
The court went on to consider the obviousness of the risk. The court considered that the risk of a fall and potential for injury must have been obvious and that any user of the bridge would appreciate the need to take care. Analogy was drawn with the facts in the case of Staples v W Dorset DC  PIQR where the claimant crouched down on a harbour wall to take a photograph, lost his footing and fell. There were no warning signs against a slippery surface. The judge held that there should have been; a decision that was reversed on appeal. The Court of Appeal in Staples held that a warning would not have told the plaintiff anything he did not know from his own observation; the most that could be said was that if there had been a notice the plaintiff might have behaved with more circumspection, but a bare possibility is not enough to establish causation in any event. Quoting Kennedy LJ in Staples:
“It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without a warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability (see s.4(a) above); but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required. So, for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff (see Cotton v. Derbyshire Dales District Council (June 10, 1994, C.A., unreported). In the present case, as Mr Tyson for the respondent acknowledges, he must succeed under the Occupiers’ Liability Act or fail, because, although the judge also referred to negligence at common law, there was no other relationship between these parties that could give rise to liability.”
Staying with the Staples case, the court noted that an important feature of that case was the absence of previous accidents. The court considered that the complete absence of previous accidents of any kind was an important feature in the case at hand. The court considered that the probability of an accident such as that suffered by Mr Edwards was sufficiently remote that the risk could properly be regarded as minimal.
As regards the absence of a formal risk assessment, the court considered that such an assessment would not have produced anything other than a statement of the obvious, namely that this was a bridge with low parapets and that persons not exercising proper care could fall off. The court could not see how such a statement would have led to steps being taken that would have prevented or lessened the possibility of Mr Edwards’ accident occurring.
In relation to Mr Edwards’ cross-appeal against the judge’s finding that there was no obligation on Sutton to erect side barriers on the bridge, Lord Justice McCombe stated as follows:
“I agree that the existence of new standards for side barriers to be fitted to new and different structures cannot necessarily lead to a conclusion that an occupier is liable in negligence if an older structure does not meet those standards. I do not consider, however, that such an argument necessarily relieves an occupier of liability for breach of the common duty of care when an accident, for which a serious risk of occurrence exists, results from a dangerous state of premises which could readily be remedied by proportionate works of renovation. For the purposes of the present case nonetheless, it seems to me that there was no requirement to provide this bridge with the type of side barriers advocated on Mr Edwards’ 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.”
Expressing its huge sympathy for Mr Edwards, the court allowed Sutton’s appeal and dismissed Mr Edwards’ cross-appeal. The standard set by the judge below was, the court said, too high.