No duty to protect against obvious dangers: Edwards v London Burgh of Sutton

Justice scales

The recent English Court of Appeal decision in Edwards v London Burgh of Sutton [2016] EWCA Civ 1005 reiterates the position in relation to occupiers’ liability for obvious dangers.

The claimant sought damages for personal injuries suffered in an accident which occurred in a park owned by the defendants. He had been pushing his bicycle over a small and narrow ornamental bridge when he fell over the bridge’s low parapet and onto rocks in the water below. The bridge was over a 100 years old and the parapet was about 26-30 cm high.

At first instance, the judge held that the defendants were primarily liable under the Occupiers' Liability Act 1957 as, although there was nothing wrong with the state of the premises, and no history of accident or injury, the defendant had a duty under s.2 of the Act to ensure that visitors were "safe in using" the premises. He made a distinction between that provision and s.1(1) of the Occupiers' Liability Act 1984, which dealt with the duty owed by reason of any danger due to "the state of the premises". The defendants should have identified and assessed the risk of a fall and, although they were not required to fit railings, users should have warned about the dangerously low parapet. The claimant was held to be 40% contributorily negligent as he had failed to take reasonable care for his own safety. Vigilance had been required because the bridge was particularly narrow and the parapet was very low and the claimant ought to have been aware of both of these features. The defendant appealed and the claimant cross-appealed against the decision that the defendants were not required to put up railings on the bridge and the assessment of contributory negligence.

The Court of Appeal considered whether the judge had misapplied the 1957 Act; whether he had taken the correct approach to risk assessment; and whether his conclusion on the duty to fit railings had been correct. It was held that the terms of s.1 of the 1957 Act and s.1(1) of the 1984 Act were not materially different. Determining an occupier's duty in each case involved first identifying the dangers, but the judge at first instance had not adequately focused on that issue. It was clear that an unfenced bridge with low parapets would present more danger of a fall than a bridge with high guard rails, but unprotected bridges were by no means unusual. Although they could present a danger from "the state of the premises" and so gave rise to a common law duty of care, that obviously did not mean that occupiers had to ensure that such bridges were not left open to visitors without guard rails or express warnings in order to discharge that duty. The approach in Tomlinson v Congleton BC [2004] 1 A.C. 46 was followed as this set out well-recognised principles about the proper treatment of the concept of risk and the absence of a duty on occupiers to protect against obvious dangers. The latter was a particularly powerful consideration in this case, given that the width of the bridge, the height of the parapets, and the potential for injury had all been clearly visible. Anyone using the bridge should have appreciated the need to take care.

A formal risk assessment would only have stated the obvious - that it was a bridge with low parapets over water and that anyone failing to exercise reasonable care might fall off. A risk assessment would not have led to steps being taken that would have prevented the accident or reduced the possibility of it occurring. Modern requirements for side barriers to be fitted to new structures did not mean that occupiers were liable if an older structure did not meet those standards. If an accident resulted from the dangerous state of premises where there had been a serious risk of it happening and where the state of the premises could have been easily and proportionately remedied, this argument would not relieve an occupier of liability for breach of the common law duty of care. However, the judge had been correct to find that there was no requirement for the local authority to fit railings to the bridge. Railings would have significantly altered the bridge's character, and would have been out of proportion to a remote risk which had not occurred previously. The appeal was allowed and the cross appeal dismissed.

While this decision confirms the existing approach of the courts to occupiers' liability for obvious dangers, it should be noted that the bridge involved was ornamental and particularly old. Different considerations would apply to a bridge or structure constructed more recently as this would have to satisfy the relevant standards at the time of construction and, if it failed to do so, this may well result in liability in the event that an accident occurred as a result of that failure.

In addition, although the Court of Appeal in this case took the view that a risk assessment would not have led to steps being taken which would have prevented the accident or reduced the risk of this occurring, that doesn’t mean the occupiers will be able to rely on this decision to avoid liability where a risk assessment has not been carried out. If it is established that the risk identified through a risk assessment would have been sufficient to justify steps being taken to reduce or minimise that risk, and those steps have been be proportionate to the risk involved, the failure to carry out an appropriate risk assessment may well give rise to liability. Essentially, the degree of risk is central to the assessment of what is a reasonable response and any response should be appropriate and proportionate to the degree of risk. There were particular factors taken into account in this case which may be irrelevant in other situations: the ornamental nature of the bridge led the court to consider that the addition of high guard rails, which would have prevented an accident like the claimant’s occurring, would have altered the bridge’s character significantly and would have been out of proportion to the degree of risk. In addition, there had been no previous reports of accidents occurring on the bridge.

Catherine Hart

Associate and Professional Support Lawyer