The interesting judgment given in the case of Christopher Edwards v London Borough of Sutton highlights several important considerations for defendant insurers when analysing claims brought under the Occupiers’ Liability Act 1957.

Facts

The claimant fell from an ornamental bridge located within the grounds of Beddington Park of which the defendant was the occupier for the purposes of the Occupiers’ Liability Act 1957. The claimant was 64 years old and suffered spinal injuries which left him wheelchair bound for the remainder of his life.

Witness evidence

It can often be the case that the only witness to a ‘slip and trip’ accident is the claimant himself. In this instance there happened to be two witnesses, the claimant and his wife.

The claimant and his wife both gave evidence that the claimant had been walking his bike over the ornamental bridge when he fell into the river below. The claimant stated that his bike had, for no known reason, pulled him to his left causing him to lose his balance and fall.

The claimant’s version of events was challenged by the defendant based on the fact that all the contemporaneous documentation, including the recorded call to the ambulance service (as made by the defendant’s gardener), the accident report, the ambulance records and A&E records, referred to the claimant riding his bike over the bridge.

The claimant stated that he could not recall what was said following the accident but that he would not have asserted that he had been riding his bike as this was not correct. The gardener admitted that he did not see the accident and the contemporaneous documents were all created based on hearsay.

The judge held that in the absence of any evidence to the contrary he had no reason not to believe the claimant and his wife, who he found had given their evidence honestly and consistently.

The claimant was therefore able to prove his version of events whilst in the witness box.

Based on the documentary evidence and given the high value of the claim, we can understand why the defendant chose to put the claimant to proof. However, taking a claim to trial is an expensive process and (particularly in low value claims) relying upon a defence based solely on the claimant not being able to prove his version of events, without any witness evidence to the contrary, can be a risky strategy.

Given the ever increasing number of fraudulent claims, defendants can be forgiven for sometimes being reluctant to believe a claimant when faced with evidence that raises doubts as to his or her veracity. However, it should be remembered that the majority of claimants are honest and that courts are reluctant to call a claimant dishonest without strong evidence to support such an assertion.

The Occupiers’ Liability Act 1957

The defendant also argued that even if the claimant’s version of events was correct, there had been no breach of duty under the Occupiers’ Liability Act 1957. The bridge had been in use since Victorian times and there had been no other reported accidents. The bridge was in such a state so as to be considered safe. Safety railings were both unnecessary and inappropriate as the bridge was ornamental and railings would diminish the bridge’s aesthetic value.

These are all points with which the Judge agreed. However, the defendant was still found primarily liable for the accident.

s2 of the Occupiers’ Liability Act 1957 states: “The common duty of care is a 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 for which he is invited or permitted by the occupier to be there.”

The judge highlighted that the test was not whether the bridge was safe, but whether reasonable care was taken by the defendant to see that the claimant was reasonably safe for the purpose he was permitted to be on the premises.

The defendant had failed to carry out any risk assessment in terms of visitors using the bridge. The judge held that had the defendant done so the risk of somebody falling from the bridge would have been identified and since the installation of railings was not appropriate, other steps should have been taken to warn users to take particular care or to divert them to other available routes.

The judge held that a reasonable occupier could not on the one hand admit visitors to use the bridge, whilst on the other hand not do or contemplate anything for their safety. As such the claimant succeeded.

It is therefore important to remember that ‘safe’ premises and compliance with the Occupiers’ Liability Act are two separate issues.

The judge did find the claimant to be guilty of contributory negligence which he assessed at 40%. This was on the basis that, absent any demonstrated reason for the claimant’s loss of balance that did not involve any fault on his part, for example, fainting or dizziness, the danger of the bridge called for a degree of vigilance in crossing it that the claimant simply cannot have exhibited.

Discussion

It is easy to see why this decision might not sit easily with the defendant or their Insurers.

The judge found that the defendant had not been obliged to install railings, which would have been the only measure to have guaranteed that the accident was prevented.

The bridge had been in place for more than 100 years and was used by numerous visitors to the park without any problem. Indeed, use of the bridge itself was considered to be of low risk and the bridge was found to be in a ‘safe’ state.

Whilst a warning sign could have drawn attention to the risks involved in walking over the bridge, the claimant had stated in his evidence that he had been proceeding carefully in any event. The risk would have been apparent to the claimant in the absence of such a sign and it was accepted that the claimant had seen the bridge and the river running beneath it before deciding to cross. As such it appears that the lack of a sign was not causative of the accident.

However, by not undertaking any assessment of the risk, the judge found that the defendant had failed to take such care as in all the circumstances of the case was reasonable to see that the claimant was reasonably safe, thus breaching their duty under s2.

Some parallels can be drawn with the criminal case of R. v Merlin Attractions Operations Ltd in which the operators of Warwick Castle were fined £350,000 following the death of a visitor who had fallen from one of the castle’s access bridges.

In that case the jury found that the bridge exposed visitors to a foreseeable risk of harm and that it had been reasonably practicable for the owners to have done more to reduce the exposure.

This all goes to show that no matter how long a risk might have existed or how many people might have successfully navigated such a risk in the past, the duty under s2 Occupiers’ Liability Act is a positive duty and successfully defending a claim can be very difficult.