The Court of Appeal in Edwards v London Borough of Sutton  has issued a reminder of the tests that must be satisfied before the occupier of a premises - in this case a public park - is held liable for injury. It has reiterated 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’.
Mr Edwards suffered a serious spinal injury while visiting a local park. He was pushing his bicycle over an ornamental bridge in the park when he fell over the edge into the water below, hitting a rock. No reason for Mr Edwards' fall was established and there was no evidence that this had been caused by the bridge.
Mr Edwards brought a claim against the London Borough of Sutton (LBS) under the provisions of the Occupiers Liability Act 1957 (OLA). The OLA states that an occupier of property owes a duty of care to all visitors in relation to dangers arising from the state of the premises or actions taken there. Mr Edwards alleged that LBS was responsible for his injuries because he should not have been able to fall off the edge of the bridge; there should have been warnings about the risk of falling and railings to prevent this.
At first instance, the court held that LBS was liable for Mr Edwards’ injuries, subject to a reduction for contributory negligence. LBS appealed the finding of liability and the case went before the Court of Appeal. LBS argued that the bridge had been a feature in the park for many years, that its layout was obvious to anyone using it and that there had never been any accidents before. The focus of the appeal was on the requirements of the OLA that an occupier ‘must take such care as is reasonable in all the circumstances of the case to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’. LBS argued that because the state of the bridge and its construction were obvious, the risk of an accident of this type was small and there was no obligation to post warnings or construct side barriers. Even if there had been warnings, this would not have affected Mr Edwards’ actions.
The court allowed the appeal, finding that LBS was not liable for Mr Edwards’ accident. It looked at the requirement of the OLA to show that there is a danger and the duty arising from the presence of that danger, concluding that it was hard to see how the activity on Mr Edwards' own part, of walking with his bicycle over the bridge, constituted a danger. This was not therefore a case where danger arose from activity on the premises.
It was held that objectively a bridge with no sides, or only low ones, could present a danger relating to the ‘state of the premises’, which gave rise to the common duty of care. However, the court stressed that the nature and degree of risk had to be considered in each case and that, as in Tomlinson v Congleton, occupiers of land are not under a duty to protect or even warn against obvious dangers.
In considering risk, the court had to look at how likely the risk was to materialise. The obligations of the occupier to take action related accordingly. In assessing that balance, the court had to examine the gravity of injury which could occur, the cost of preventative measures and the social value of the activity which gave rise to the risk, which in this case the court felt was small.
The court found that while it was obvious that there was some risk of a fall and potential injury, the bridge was clear and unobstructed. The width of the bridge and the height of the parapets were also obvious to the eye. Any user of the bridge should appreciate the need to take care to avoid falling over the edge and someone pushing a bicycle alongside should see the need to take extra care because of the confined space. The fact that there had never been a recorded accident of this type here supported the view that the risk of an accident was minimal. It did not however follow that an occupier was relieved from liability for breach of the common duty of care when an accident resulted from a dangerous state of premises which could readily be remedied by proportionate works of renovation.
One of Mr Edwards’ allegations was that there was no evidence of risk assessments being carried out. The court did not see what a formal assessment would have produced beyond a statement of the obvious - that this was a bridge with low parapets over water and that people who did not exercise proper care might fall off. In its view, this would not have led to steps being taken that would have prevented or lessened the possibility of Mr Edwards' accident occurring. There was also no requirement to provide the bridge with the type of side barriers advocated on Mr Edwards' behalf. Such additions would have altered the character of the bridge significantly and would be out of proportion to a remote risk which had never materialised in its known history.
Philippa Luscombe, partner in the personal injury team at Penningtons Manches LLP, comments: “While the findings of the Court of Appeal will have been a disappointment to Mr Edwards given the serious injuries he sustained, in my view they strike the right balance between ensuring that occupiers act responsibly and placing an obligation on individuals to take care for their own safety. The judgment very clearly reminds people that genuine accidents do happen – and that it is not a matter of course that an accident resulting in injury forms the basis of a personal injury claim. The court made it clear that a claimant has to establish that there is a danger and a real risk of an accident arising. In terms of an occupier’s obligations, there is no duty to protect or warn against obvious dangers, the visitor must take some responsibility.”