Clarification from the Court of Appeal on an Occupiers Duty of Care.
Thursday, 20th October 2016
Earlier this year the courts gave useful guidance on the application of the Defective Premises Act 1972. See our commentary click here.
The Court of Appeal has turned its attention this month to the Occupiers Liability Act 1957 in Edwards v London Borough of Sutton (2016).
The Claimant was pushing his bike over a small ornamental bridge in a park owned by the Defendant when he lost his balance. The bridge was humped, with low parapet sides and he fell, suffering a spinal injury. The claim succeeded albeit with a 40% reduction for contributory negligence. The Defendant appealed.
The Claimant argued that the Defendant should have provided side protection barriers to the bridge. Alternatively, they failed to warn visitors of the dangers posed by the bridge. In reply the Defendant argued that the bridge had been there for some time, the state and construction of the bridge were obvious and there was no history of any previous accidents.
Several issues were considered:
Is there a Duty to act?
- One must identify the danger before you can assess whether the occupier has a duty to act.
- Bridges with low sides are objectively more dangerous, but reasonably common.
- There may be an objective 'danger', but it does not follow that such bridges should not be closed to visitors.
- The occupier should consider the social value of the activity v the cost of prevention.
- The response should be appropriate and proportionate.
Was there a foreseeable risk of injury? Objectively, the risk was small. The degree of risk is central to the assessment of what reasonably should be expected of the occupier.
Is there a Duty to Warn?
- Only if, without such a warning, a visitor would be unaware of the nature and extent of the risk. See Staples v West Dorset (1995)
- A risk assessment would have simply stated the obvious, i.e that this was a bridge with low sides over water. It would not have prevented the accident.
- There is no requirement on the occupier to update the structure so as to accord with modern standards (see Japp v Virgin Holidays Ltd). To add side barriers would have altered the character of the bridge and be a step out of proportion to the remote risk of harm (an accident had never happened before).
We can only repeat and endorse the sensible summary given by McCombe LJ in his lead judgement…….
'not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises'
A welcome dose of common sense for all occupiers.