In the recent case of Taylor – v- English Heritage  the Court of Appeal found English Heritage liable to a visitor who suffered injury after falling into a dry moat at Carisbrooke Castle. Whilst this should not have the far reaching consequences which concerned English Heritage during trial, as the Court was at pains to highlight the decision was extremely fact specific, it is an important reminder to all land owners and occupiers of their duty of care to visitors.
At the first instance hearing the Court held that, despite having put up signs to warn of the danger posed by the steep drop into the moat, English Heritage was in breach of section 2 of the Occupiers’ Liability Act 1957 (the “OLA”) and a 50% contributory cause of the injury suffered.
Section 2 of the OLA imposes a common law duty of care on an owner/occupier of premises 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.”
Previous case law confirmed that there was no legal duty on occupiers or owners of land to protect visitors, responsible or otherwise, against “perfectly obvious” dangers.
English Heritage appealed on the basis it had discharged its obligation in circumstances where the sheer drop was obvious; acting in a manner that was consistent with the principle that adult visitors don’t require warnings of obvious risks. There was also an argument that the decision should be overturned as it was contrary to public interest by requiring organisations such as English Heritage to put up “an unwelcome proliferation of unsightly warning signs”.
The Court of Appeal rejected the arguments put forward by English Heritage. It considered that the sheer drop was not an obvious danger and that English Heritage ought to have taken reasonable steps to protect visitors, specifically by placing signage in the immediate vicinity of the danger.
The Court of Appeal went to great lengths to make it clear that the decision was based on the specific facts as applied to the principle that adult visitors do not require warnings of obvious risks unless they do not have a genuine and informed choice as to those risks. The Court acknowledged that whether a danger was obvious or not was a difficult question which had to be considered against the duty to “take such care as in all the circumstances of the case is reasonable” in order to keep the visitor “reasonably safe”.
It is against this backdrop that owners and occupiers should consider any dangers on their premises. Where a potential danger exists, whether obvious or otherwise, owners and occupiers would do well to take steps to put in place reasonable measures to reduce or eliminate that danger. The Court stressed that those steps should be no more than reasonable and would, therefore, be extremely fact specific and judged, presumably, on a risk to cost analysis.