The OLA 1957 Revisited and Restored

It is said that the path to justice is rarely straight. It twists, turns, meanders and undulates; and there are hazards on route for the unwary.

This analogy is never more prescient than when dealing with injury claims brought against the occupiers of land, most particularly Local Authorities, who may indeed have meandering paths and winding trails running through their extensive network of public parks and open land.

Following the 2014 High Court decision of HHJ Gore in the case of Edwards v Sutton the landscape of this area of law was made yet more complex. It is with relief that the Court of Appeal have today restored order in a highly significant and helpful judgement for local authorities and other occupiers.

The issues that the 2014 decision threw into disarray were extensive: the precise duty and extent of care owed by occupiers to lawful visitors; access; warnings; maintenance; risk assessment; modernization?

And what of the cost?

And what of the consequences if occupiers got it wrong?

In December 2014 Christopher Edwards a 64 year old retiree was awarded damages to be assessed (but claimed by his lawyers, Stewarts LLP, to be in excess of £4m) for injuries suffered in 2010 when he fell from a small ornamental arched bridge in a public park in Sutton, South London (pictured). He had been a lawful visitor to the park with his wife; they had been cycling but had dismounted to make their way back to their vehicle.

The precise cause of Mr Edwards fall was, perhaps bizarrely, never ascertained. He and his wife choose a route back to their vehicle that took them over the bridge, a bridge that had existed for decades, without reported incident or accident and a bridge the dimensions and low parapets of which were readily apparent to any observer.

Walking ahead of his wife and with his bike at his side Mr Edwards crossed the bridge but, at approximately the mid-point, he and his bicycle fell together; we know not why. He dropped some four feet into the stream below and suffered a serious spinal injury.

He deserves considerable sympathy but did he, in addition, deserve to be compensated? Are the occupiers of land expected simply to be the insurer for every individual injured whilst lawfully visiting their premises, irrespective of the actual cause?

Mr Edwards made a compensation claim against the London Borough of Sutton ("LBS"). We were instructed by Zurich Insurance to represent and defend the Council.

In bringing his claim the arguments put forward on Mr Edwards behalf were primarily that no reasonable care had been taken to ensure he was safe in using the bridge, such as by the addition of side protection bars and that suitable warnings of alternative routes (such as via bridges with side protection bars) should have been given. It was also argued that the low parapet of the bridge was, in its own right, a danger likely to act as a "pivot" over which a person might fall and there had also been a failure to risk assess the bridge which would have revealed the "foreseeable" risk of a person falling and that serious injury was "foreseeable" as a result of such a fall.

It was our argument the bridge was in no way unsafe for Mr Edwards to cross, it required no adaptations and no risk assessment would have prevented the incident.

Further, the very features of the bridge that added to (if not made) its character and charm (its low parapet, the arch and the stream that ran below it) but which the claimant effectively argued created the danger were there clearly to be seen and accordingly Mr Edwards should have taken appropriate care when crossing.

After a two day trial before HHJ Gore QC, judgment was given in Mr Edwards favour but with a reduction of 40% from his damages to reflect his own responsibility in not taking sufficient care.

This judgment was in stark contrast to previous decided case law, most particularly that of Tomlinson v Congleton BC [2003] H.L.

That case clearly established the starting point for consideration of a claim by a lawful visitor is "the state of the premises", in other words were they unsafe. Coupled with this was an entitlement by an occupier to expect an individual to safeguard their own wellbeing against obvious or self- inflicted harm, unless they had no genuine or informed choice (or lacked the capacity to make an informed choice such as a child might struggle with). Finally, in Tomlinson and the cases of Staples v W. Dorset DC [1995] PIQR 439 and Cotton v Derbyshire Dales DC (CA, unreported) 10 June 1994 it was held unnecessary to warn an adult of an obvious risk.

These cases gave clear guidelines on duty, the treatment of risk and proportionality in relation to it and of the obligation to warn (or not) of obvious danger.

To have allowed Mr Edwards judgment to stand unchallenged would have thrown into confusion these long established principles and in turn opened up an obligation on occupiers to undergo extensive, costly and disproportionate risk assessments, the implementation of warning signage for even the most obvious of risks or even possible adaptation of premises (or more likely the restriction of access to them by the public and thus the loss of social value and social benefit).

Perhaps more importantly it would have given judicial acceptance to the view that an occupier was no longer entitled to rely upon the lawful visitor to use their informed judgment once they crossed the threshold into their premises.

For Local Authorities the cost to the public purse would have been prohibitive; and the landscape littered with warning signs.

As such both Sutton and their insurer were staunch in the necessity to challenge this decision not just for their benefit but for occupiers generally.

Our appeal was heard before Lady Justice Arden, Lord Justice Lewison and Lord Justice McCombe. Today, the 12 October, their unanimous judgment was handed down.

Our appeal was allowed; Mr Edwards' case was dismissed.

Although tragic for Mr Edwards this is an entirely right and proper decision. To quote Lord Justice McCombe "not every accident (even if it has serious consequences) has to have been the fault of another". Reaffirming the correctness of previous case law he commented that the decision of HHJ Gore, at first instance, had sought simply to impose too high a duty.

The twists and turns that had been given to this area of law have been straightened.