Christopher Edwards v London Borough of Sutton [2016] EWCA Civ 1005

Executive summary

A useful decision from the Court of Appeal in favour of ‘occupiers’, which reaffirms the point that there is generally no duty to protect a visitor against an obvious or remote risk. This case has potentially wide-ranging benefits for organisations in both the public and private sectors.

Facts

The claimant was pushing a bicycle over a small ornamental footbridge in a park owned and occupied by the London Borough of Sutton. The bridge was humped and had low parapet side. It was an old bridge and there had been no previous accidents. The claimant lost his balance and fell over the edge into the water below. As a result he sustained a serious spinal cord injury.

At first instance, the trial judge found that there was a breach of the Occupiers Liability Act 1957. Whilst there was no obligation on the defendant to update the bridge by installing new handrails (in circumstances where there had been no such obligations, standards, or requirements at the time the bridge was constructed) the judge held that there was a foreseeable risk of injury and therefore considered that there was an obligation to warn visitors as to the risks of the low parapets and/or to instruct them to take a different route through the park. Mr Edwards was however found contributorily negligent to the extent of 40%.

Decisions

The Court of Appeal, through Lord Justice McComb’s lead judgment found that the first instance judge had misdirected himself,  with a failure in the original decision to recognise that under the 1957 Act it is necessary to first identify the relevant danger (if any) before being in a position to be able to do something about it. The Court noted that ornamental bridges are a common feature of many public gardens and are regularly traversed without difficulty. Whilst it was in theory possible for the low parapets of the wall to constitute a ‘danger’, this did not trigger a duty to take further steps (whether by installing railings or warning signs) for two reasons:

1. The seriousness of the accident which had befallen the claimant could not be equated with there being a serious risk of it occurring in the first place – there had been no previous accidents of any kind and any risk, if it existed, was remote.  The risk of injury could be regarded as minimal rather than serious;
2. There was no duty to warn of obvious risks (in line with Staples v West Dorset [1995]) – the approach to the bridge was clear, and its width and the height of the parapets were obvious.

The Court of Appeal also found that had a risk assessment been carried out, it would have made no difference as it would simply have stated the obvious. The Court found no evidence that Mr Edwards would have acted any differently had signage or other protection been in place.

Comment

This is a useful decision that is helpful to all occupiers, whether in the public or private sectors.

This welcome decision reinforces the point that an occupier only has to exercise reasonable care for the safety of any visitors – the duty is not an absolute duty to prevent all accidents. As Lord Justice McCombe stated when giving the lead judgment “not every accident (even if it has serious consequences) has to be the fault of another; an occupier is not an insurer against injuries sustained on his premises”.  Indeed, the duty will not be triggered at all if the risk of an accident/injury is too remote, and if the risk is not reasonably foreseeable.

Similarly the case acts as a strong reminder that a failure to carry out a risk assessment, or to identify a potential hazard, will not always result in a finding against an occupier. Factors such as how long the ‘hazard’ has been present, and how many similar accidents have occurred previously, are likely to remain as key indicators to the court in such cases, and will be persuasive in determining whether the risk is too remote to engage the duty under the 1957 Act.

The decision is therefore a welcome one, but it remains to be seen whether its application will be more restricted to cases involving longstanding structural features of any buildings and premises, rather than all hazards that may arise. It is unlikely to be possible, for example, to argue that a typical transitory slipping or tripping hazard could not give rise to a breach of duty simply because it was there to be seen and therefore ‘obvious’.

Further, the decision should be treated with some caution. The social value of the bridge in this case clearly influenced the decision.  Whilst such a point would now allow evasion of liability if proportionate measures would negate a serious risk of occurrence resulting from the dangerous state of premises, the court clearly felt here that high barriers would have altered significantly the bridge’s character and been out of proportion to the remote risk. The decision should also not be treated by occupiers as a green light to avoid the need to carry out proper risk assessments, or to do so less frequently. Such assessments are likely to remain the cornerstone to ensure that reasonable care is taken to ensure visitors are reasonably safe.  

That said, this decision once again demonstrates the sympathy which the Court of Appeal has for occupiers, accepting that there is no automatic presumption of fault if a visitor suffers an accident.