Obvious risks and occupiers' duties

Published 8 November 2016

The question of whether an occupier is responsible for injuries suffered by a visitor where the risk of injury is slight (albeit that any injury may be severe) and that risk is obvious to the visitor, was considered by the Court of Appeal in Edwards v Sutton London Borough Council, the judgment in which was handed down on 12 October 2016.

Christopher Edwards was a lawful visitor to a public park which was under the control of the local council.  He had been cycling in the park with his wife and, when they were walking back to the car park where they had parked, their route took them across an ornamental bridge which was built in the 19th Century and had side parapets which were 26cm and 30cm high.  As he crossed the bridge, he fell over the side and suffered a spinal injury which rendered him paraplegic.  This was the first reported accident on the bridge.

He argued that the council should have installed side barriers with a height of 1.1m in line with a British Standard for Pedestrian Restraint Systems from 1995 and/or should have provided a warning.  He succeeded at first instance subject to a 40% deduction for contributory negligence.  The council successfully appealed this decision to the Court of Appeal.

The Court was required to consider whether the council's duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes or which he is invited to be there (Occupiers Liability Act 1957, s.2(2)) extended to a duty to erect barriers meeting current standards and/or warning signs.

Whilst it is clear that a bridge with low sides may present a danger which gives rise to a duty on the part of the occupier, the Court considered the degree of the risk of injury.  When doing so, it noted the House of Lords' decision in Tomlinson v Congleton BC that the degree of risk is central to the assessment of what should reasonably be expected of the occupier and that, where the risk of serious injury is remote, it may be unreasonable to expect the occupier to protect against it, particularly where the cost of reducing the risk is disproportionate to the likelihood of injury arising or the activity giving rise to the risk has a social benefit.

On the question of whether the council should have erected warning signs, the Court concluded that it was not under a duty to do so because the risk of injury was obvious and a warning sign would not have told the Claimant any more than he already knew from his own observations.  It noted the Court of Appeal judgment in Cotton v Derbyshire Dales DC in which Kennedy LJ said that it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff.

The closing paragraph of the lead judgment of McCombe LJ is a salutary reminder to litigants and their representatives, that 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.