Occupiers’ Liability Act 1957 – Common duty of care – Respondent suffering injury when falling from small ornamental bridge in park controlled by appellants – Whether respondents breaching duty to ensure that visitors safe in using bridge for permitted purpose – Whether obliged to erect side barriers or warning signs – Appeal allowed
The respondent, a 65-year-old man, suffered severe injuries and was rendered paraplegic when he fell from a small ornamental footbridge bridge in Beddington Park in Sutton onto rocks in the water below. The sides of the bridge were protected only by a low parapet of about 30cm in height. At the time of the accident, the respondent and his wife were returning from a bicycle ride in the park. The respondent was pushing his bicycle over the bridge when he overbalanced, for reasons unknown, and fell. The respondent brought a claim for damages against the appellant council, which controlled the park, for breach of the common duty of care arising under the Occupiers’ Liability Act 1957.
The respondent contended that the appellants should have provided higher side protection barriers to the bridge, in accordance with modern safety standards, or warned visitors to the park of the dangers posed by the bridge. He submitted that the bridge’s parapets posed their own danger as a pivot point over which a person might fall and that the appellants had failed to carry out any, or any adequate risk assessments in respect of the bridge.
The appellants argued that the bridge was a pleasing ornamental feature and that there was no previous record of any accident occurring from its use. They submitted that, in such circumstances, there was no obligation to construct side barriers and no obligation to warn about a structure the state and construction of which would be obvious to any user.
The judge found the appellants liable and entered judgment against them for 60% of the damages to be assessed, with the respondent held to be contributorily negligent as to the other 40%. He took into account the absence of any formal risk assessment in relation to the bridge and found that the accident was within the scope of foreseeable risk. He found that there was no obligation to install side railings, which would reduce the visual amenity of the bridge, since occupiers were not obliged to modify existing premises built in accordance with prevailing standards at the time of construction. However, he found that the appellants had been under an obligation to warn users of the dangerously low parapet on the bridge. The appellants appealed. They respondent cross-appealed against the finding that there was no obligation to install side barriers on the bridge.
Held: The appeal was allowed.
(1) Section 1 of the 1957 Act regulated the duties imposed on an occupier in relation to visitors and others in respect of dangers due to the state of the premises or things done or omitted to be done on them. It was therefore necessary to identify what dangers there were before it was possible to see to what, if anything, the occupier’s duty attached in each case: Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46; [2003] PLSCS 203. The judge had not focused adequately on that issue in the instant case.
The activity of the respondent in walking with his bicycle over the bridge could not be said, in that context, to constitute a danger from things “done or omitted”. As to the state of the premises, it was apparent that an unfenced bridge or a bridge with low parapets would present more danger of a fall than would a bridge with high guard rails. Ornamental bridges with low walls, together with water features, were likely to be common features of decoration in public gardens and any structure of that type presented the risk that the user might fall from it. However, while there might objectively be a “danger” arising from the state of the premises, so as to give rise to the common duty of care, that did not mean that, in order to discharge the duty, no such bridges should be left open to visitors or that they should not be left open without guard rails or express warnings.
(2) The above conclusion flowed both from the proper treatment in law of the concept of risk and also from the principle that occupiers of land were not under a duty to protect, or even to warn, against obvious dangers. In relation to the concept of risk, it was necessary to take into account not only the potential seriousness of the injury but also the likelihood of it occurring. Allied with foreseeability of likelihood, it was necessary to balance the factors of risk, gravity of injury, cost and social value; while there were limits on social value in a case of the present kind, the amenity of the bridge as a feature in the park should not be ignored entirely.
In the instant case, it must have been obvious that there was some risk of a fall and potential for injury. The approach to the bridge was clear and unobstructed. The width of the bridge and the height of the parapets were also obvious to the eye. The bridge was also over water, with whatever might lie beneath its surface. Any user of the bridge would appreciate the need to take care and any user limiting the width of the bridge’s track, by pushing a bicycle to his side, would see the need to take extra care. This was a case where a warning would not have told the respondent anything that he did not know from his own observation. Moreover, the absence of accidents was an important feature of the case. In the absence of any recorded accident of any kind, the probability of such an accident could properly have been sufficiently remote that the risk could be regarded as minimal: Staples v West Dorset District Council [1995] PIQR 439 applied.
(3) Furthermore, so far as the judge had taken into account the absence of a risk assessment, it was necessary for the court to ask what a formal assessment would have produced in the instant case. On the facts, it was hard to see what such an assessment would have produced, if anything, beyond a statement of the obvious, namely that this was a bridge with low parapets over water and that persons not exercising proper care might fall off. Such a statement would not have led to steps being taken that would have prevented or lessened the possibility of the respondent’s accident occurring. The judge had set the standard too high and the proper finding was that the appellants were not liable for the respondent’s accident.
(4) The existence of new standards for side barriers to be fitted to new and different structures could not necessarily lead to a conclusion that an occupier was liable in negligence if an older structure did not meet those standards. An occupier would not necessarily be relieved of liability for breach of the common duty of care when an accident, for which a serious risk of occurrence existed, resulted from a dangerous state of premises which could readily be remedied by proportionate works of renovation. However, in the instant case, there was no requirement to provide the bridge with the type of side barriers advocated by the respondent. 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.
Gerard McDermott QC and Nathan Tavares (instructed by Stewarts Law LLP) appeared for the appellants; Andrew Warnock QC and Jack Harding (instructed by Clyde & Co LLP) appeared for the respondent.
Sally Dobson, barrister
Click here to read a transcript of Edwards v Sutton London Borough Council.
