English Heritage v Taylor

Under section 2 of the Occupiers Liability Act 1957, an occupier must take reasonable care in all the circumstances to make visitors reasonably safe. Ordinarily, no warning is required for a danger that is obvious to a visitor who has a genuine and informed choice. Whether a danger is obvious is fact-sensitive. A concealed sheer drop was not rendered obvious merely because a deep moat could be seen. Reasonable warning signage was therefore required. Causation may be established where a warning would probably have changed the claimant’s conduct, despite the claimant’s own risky act. Contributory negligence remains an evaluative apportionment of fault and causation. The duty requires reasonable measures, taking account of matters such as aesthetics, rather than blanket warning signs.

Taylor suffered a serious head injury at Carisbrooke Castle after descending an informal steep path from a firing platform. He crossed a grass pathway and fell over a concealed sheer drop into a dry moat. On 20 January 2015, Mr Recorder Blunt QC found English Heritage in breach of section 2 of the Occupiers Liability Act 1957 for failing to provide an adequate warning, found the breach causative, and attributed 50 per cent responsibility to Taylor.

English Heritage appealed on breach of duty, causation and contributory negligence. The central issues were whether the sheer drop was an obvious danger, whether the missing warning caused the accident, and whether the 50 per cent apportionment should be disturbed.

The Master of the Rolls gave the judgment, with McFarlane LJ and Beatson LJ agreeing. The appeal was dismissed.

1. The common duty under section 2 of the Occupiers Liability Act 1957 requires reasonable care in all the circumstances. The principles stated in Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46, and Staples v West Dorset District Council [1995] PIQR P442 mean that an occupier ordinarily need not protect against a perfectly obvious danger where the visitor has a genuine and informed choice. The Recorder was entitled to find that the sheer drop was not obvious from the platform, notwithstanding that a moat of considerable depth could be seen.
2. The appellate court accepted the general proposition in Manning v Stylianou [2007] EWCA Civ 1655 concerning findings based on photographs, but distinguished it because the Recorder had also conducted a site visit. He was better placed to assess what was apparent to a person standing on the platform. The finding could not properly be reversed.
3. The Recorder’s reasoning about fencing and warning signs was inconsistent. That inconsistency did not undermine his clear and independently supported conclusion that additional signage was required. The breach finding was upheld.
4. Causation was established on the balance of probabilities. Descending a steep grassy bank on foot carried a risk of losing balance, but a twelve-foot sheer drop created a materially more serious risk of severe injury. A warning of that specific danger was likely to have influenced sensible behaviour.
5. An appellate court will not ordinarily interfere with an apportionment of contributory negligence: Clare v Perry [2005] EWCA Civ 39 and Jackson v Murray [2015] UKSC 5, [2015] 2 All ER 805. The Recorder’s 50 per cent apportionment was reasonable. The respective degree of fault and causation of injury had to be balanced, and the occupier’s longstanding fault was relevant against Taylor’s momentary fault.
6. The court rejected wider policy objections. The statutory inquiry requires consideration of all the circumstances, including aesthetic matters. Occupiers need take no more than reasonable steps; the decision did not require warning signs throughout sensitive historic sites.

• Court of Appeal (Civil Division): On 11 May 2016, English Heritage’s appeal was dismissed and the findings on breach, causation and 50 per cent contributory negligence were upheld. [2016] EWCA Civ 448.
• Newport (Isle of Wight) County Court: On 20 January 2015, Mr Recorder Blunt QC found a breach of section 2 of the Occupiers Liability Act 1957, causative of the injury, and attributed 50 per cent responsibility to Taylor.