Edwards v London Borough of Sutton

An occupier’s duty under the Occupiers’ Liability Act 1957 first requires identification of a danger due to the state of the premises or to things done or omitted there. The mere possibility of a serious injury does not require precautions. The court must assess the likelihood and gravity of injury, the cost of prevention and the social or amenity value involved.

An occupier need not protect or warn an adult against an obvious danger which the visitor can appreciate and avoid by taking reasonable care. Nor does the absence of a formal risk assessment establish liability unless an assessment would probably have identified an effective precaution. New construction standards do not necessarily require alteration of an older structure, particularly where the risk is remote and the works would disproportionately change its character.

A park visitor suffered catastrophic spinal injuries after losing his balance for an unexplained reason and falling from a narrow ornamental footbridge with low parapets. The bridge was under the control of the London Borough of Sutton.

The High Court, in [2014] EWHC 4378 (QB), held the authority liable under the Occupiers’ Liability Act 1957 because it had not warned visitors about the low parapets. It awarded the claimant 60% of his damages after finding him 40% contributorily negligent. It rejected his contention that guard rails should have been fitted.

The authority appealed against liability. The claimant cross-appealed concerning guard rails and contributory negligence. The principal issues were whether the bridge presented a danger engaging the statutory duty, whether the remote and obvious risk required a warning or physical protection, and whether the absence of a formal risk assessment affected liability.

1. Appeal allowed and cross-appeal dismissed. The occupier was not liable. McCombe LJ gave the judgment, with which Lewison LJ and Arden LJ agreed. The bridge’s low sides could be assumed to constitute a danger arising from the state of the premises, but the existence of some objective danger did not itself require closure, guard rails or warnings.
2. Sections 1(1) and 2 of the Occupiers’ Liability Act 1957 must be read together. Before deciding what reasonable care requires, the court must identify a danger due to the state of the premises or to things done or omitted there. In this respect, the relevant language did not materially differ from section 1(1) of the Occupiers’ Liability Act 1984. The claimant’s act of wheeling a bicycle did not itself constitute the relevant danger, while the omission of guard rails added nothing to the alleged danger arising from the bridge’s physical condition.
3. The magnitude of risk must be distinguished from the seriousness of its possible consequences. Reasonable care depends upon a balance of the likelihood and gravity of injury, the cost of preventive measures and the activity’s social or amenity value. No previous accident had been recorded during the bridge’s long history. The probability of a fall of this kind was sufficiently remote for the risk to be regarded as minimal. The law does not require a disproportionate response to a slight risk merely because the possible injury is grave.
4. The danger was obvious. The bridge, its width, its low parapets, the water below and the need for additional care when wheeling a bicycle were all readily apparent. An occupier need not protect or warn an adult visitor against an obvious danger which the visitor can appreciate and avoid by taking reasonable care. A warning would have stated only what users could already see.
5. The absence of a formal risk assessment did not establish liability. Such an assessment would merely have recorded that a person failing to take proper care might fall from a bridge with low parapets. There was no basis for finding that it would have led to an effective precaution which would have prevented or reduced the possibility of the accident.
6. Standards applicable to new structures did not require the bridge to be fitted with modern side barriers. Although later standards do not invariably relieve an occupier where an older structure presents a serious risk that proportionate renovation could remedy, guard rails here would have significantly changed the bridge’s character in response to a remote risk which had never previously materialised.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 1005, unanimously allowed the local authority’s appeal, set aside the finding of liability and dismissed the claimant’s cross-appeal.
2. High Court, Queen’s Bench Division: By [2014] EWHC 4378 (QB), entered judgment for the claimant for 60% of the damages to be assessed. It found breach of the common duty of care through failure to warn, rejected the alleged duty to install guard rails and assessed contributory negligence at 40%.