It is safe to go down to the woods today! How to win claims under the Occupiers' Liability Act

Published 13 November 2018

McAuliffe v City of London Corporation, District Judge Davies, Edmonton County Court, July 2018.

The facts

Epping Forest, London's largest open space, is an historic parkland - Queen Elizabeth I probably hunted there, and Queen Victoria dubbed it 'the People's Park' as it was open to all. It attracts over 4 million visits per year.

The Claimant, one of those visitors, was cycling out of the Forest on Saturday the 24^th June 2017, around a main gated entrance, when he caught his right forearm on a bolt protruding from the gate post, suffering injury.  The Claimant's route around the gate is indicated by the arrow below:

And we now highlight the relevant bolt:

He claimed damages against the City of London Corporation, who are Conservators for, and manage, Epping Forest.

The law

City of London, as occupier, owes lawful visitors what is known as 'the common duty of care', under section 2 of the Occupier's Liability Act. That duty is further defined under section 2, as:

The common duty of care is 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 purpose for which he is invited or permitted by the occupier to be there.

The Judge came up with a more punchy legal test– the Defendant must show that it took reasonable care to see that the Claimant was reasonably safe.  Whilst this may sound simple, how does a Defendant prove that at Court? 

The evidence

The Defendant's key witness was a highly experienced, Head of Operations who had worked in several woodlands and nature reserves over the years for different organisations.  He could speak authoritatively of what is, and is not, standard in such an environment.  And the Defendant had access to a range of data, records and statistics relating to the Forest. That allowed them to do the following:

1. Show that the risk of injury for pedestrians or cyclists from the bolt was low. Although there were a number of other similarly constructed gates in Epping Forest, the witness's evidence was that there had been no similar accident in the past 5 years.  That despite the fact that the Forest attracts an estimated 32,000 visits through that gate, in addition to the overall 4 million visitors a year.

2. Adduce evidence that the fact that there had not been any previous accidents was not simply good luck – it had a system of reactive inspection in place. This allowed Forest Keepers to note and order repair of anything that they judged to be hazardous. The Defendant could not say that their Keepers had specifically considered the bolt, out of the many things that they inspect, but the point was that it had not struck them as dangerous during their rounds.  And further, when drawn to their attention for the purposes of this claim, the Keepers decided that it was not hazardous, and took no action to change it. 

3. The Claimant tried to argue that the bolt could easily and cheaply have been guarded with wooden battens – as shown on a similar gate nearby. So the Defendant called evidence as to the costs and practicality of altering the gates to that design.  The Defendant's evidence was that multiplied across the whole Forest, the work would have cost many thousands of pounds in the first year, with ongoing maintenance substantially increasing that figure.

The Judgment

The Judge held that the risk was low, and the kinds of injuries that may have been likely to have taken place were low level.  Therefore the expenditure needed to remove the risk was not justified, and he found for the Defendant.  The other gate design with the battens was just different, not chosen because it was safer.

What we can learn

• Courts are increasingly robust when looking at claims brought under the OLA by adults who take a risk that is obvious or ought to be obvious.
• Given that it is a common design, if the Judge had found that the gate design was dangerous, it would have had implications not only for Epping Forest, but for the owners of gates across England and Wales. The Judge was therefore receptive to extensive evidence being submitted.
• Cases under the Occupiers' Liability Act are fact specific, and to win, a Defendant needs to adduce compelling and detailed factual evidence to show that it took reasonable care of its visitors.
• Here, such evidence, delivered by a knowledgeable and well prepared witness, brought to life the social utility of the Forest, enabling the court to balance that against the low risk of injury.
• Having realistic details of the cost involved in altering alleged hazards, is important and must not be overlooked.  
• Unlike defences under the Highways Act, details of a proactive system of inspection are not essential to win.