Edwards v Sutton LBC  EWCA Civ 1005 ( see: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1005.html) – a case concerning occupier’s liability – was handed down by the Court of Appeal (CA) on 12th October 2016; a judgment that had been eagerly anticipated by many and a judgment that arguably strikes a significant blow in favour of common sense and against the ‘nanny state’ mentality. It is submitted that, at first instance ( EWHC 4378 (QB)), the High Court had delivered what can only be described as a ‘Claimant friendly’ judgment and that in doing so the Court that had failed to give full weight to established principles.
The facts of the case, very briefly stated, are that the Claimant was traversing a small, ornamental hump-backed bridge over running water (pictured below). The bridge had been in long existence and had little in the way of side-protection; a very low wall considerably less than knee-height to the average adult. The Claimant was crossing the short, narrow bridge on foot whilst pushing his bicycle. For reasons unknown, the bike pulled to one side, the Claimant lost his balance and toppled over the low wall (along with his bike) landing in the water below and suffering very serious injuries as a consequence.
At first instance, the Judge was critical of the Defendant occupier for failing to perform a risk assessment. He found that, whilst there was no requirement to fit a barrier, there was a requirement to provide a warning.
There being no ‘good reason’ offered for why the Claimant had fallen over the wall, the Judge held that there must have been a degree of blameworthiness on the part of the Claimant and as such found him to be contributorily negligent to the extent of 40% with the Defendant being 60% responsible (see: -).
The Defendant argued on appeal that the bridge posed no hidden (and therefore relevant) danger; any risk from the construction was obvious and there had been no recorded incidents in its extremely long history (over 150 years). It was submitted that a risk assessment would not have identified anything other than what was already obvious and the law recognised that there was no duty to warn of obvious dangers. Moreover, it was argued that even if a warning had been provided, there was no evidence that the Claimant would have heeded the warning and therefore causation could not be established.
The Claimant cross-appealed on the finding of contributory negligence.
The CA first considered the correct starting point when determining an occupier’s liability.
Whilst it was the 1957 Act and not the 1984 Act that applied in this case (the Claimant being an authorised visitor and not a trespasser), the CA suggested that there was no material difference in the initial approach. Whilst the duties (if any) may ultimately be different depending on which statute applies – it is initially essential to first identify the danger that would trigger the duty to act (). The CA concluded that the Judge at first instance had fallen into error by failing to give sufficient attention to this question ().
The CA proceeded to identify the danger that arose as a result of ‘…the state of the premises or to things done or omitted to be done on them…’. The CA concluded that, in terms of ‘things done’, walking over the bridge whilst wheeling a bicycle was in no way dangerous (). The CA concluded that, objectively, the low parapet (state of the premises) did have the potential to be a danger but held that any omission (to install a guard rail) could add nothing further to that pre-existing danger (-).
Having identified the danger that triggered of the duty of care, the CA then asked whether, in order to discharge the duty, there was a requirement to fit a guard rail or provide a warning: the CA resoundingly answered that question in the negative – a ‘clear no’ (). That answer arose from well established principles: (i) the ‘concept of risk’ and (ii) there being ‘no duty to warn of obvious dangers’ ().
On the concept of risk (see: -), the CA emphasised that a serious injury did not, of itself, mean there was an automatic duty to guard against the injury. The CA emphasised that it was necessary to look beyond the fact that there has been an injury; what informed the duty was the risk of an injury and the potential seriousness of the injury. The duty was to adopt an appropriate and proportionate response to the degree of risk and the potential seriousness of outcome: quoting from Tomlinson v Congleton BC  UKHL 47,  1 AC 46:
…If the risk of serious injury is so slight and remote that it is highly unlikely ever to materialise, it may well be that it is not reasonable to expect the occupier to take any steps to protect anyone against it. The law does not require disproportionate or unreasonable responses.
The CA pointed out that this was consistent with the seminal case of Bolton v Stone, which established that even where a risk is foreseeable it may not necessarily be appropriate to guard against it. The CA also emphasised (by reference to Tomlinson) that the duty was also informed by matters such as social and amenity value ().
Furthermore, the CA recognised that it was long established that there is no duty to warn of obvious dangers (referring to Staples v West Dorset DC  PIQR 439). The CA concluded that, on the facts of this case, the risk of a fall and the potential for injury must have been obvious (). As such it was not necessary for a warning where a warning would not tell the injured party anything they didn’t already know (-).
On the absence of the risk assessment, which had influenced the Judge at first instance, the CA suggested that there was a difference between jurisprudence from employment cases (where there exists a positive duty to undertake risk assessment), but in any event, the risk in this case was obvious and a risk assessment would only have served to identify the obvious. Consequently, the CA did not accept that the absence of a risk assessment was relevant on the facts of this case (-).
The CA also addressed the question of contemporary standards, firstly stating that contemporary standards applicable to new (or different) structures did not automatically lead to a requirement to apply those standard to an older or different structure but that this did not automatically relieve an occupier of a duty to apply those contemporary standards if the risk required it as an appropriate and/or proportionate response ().
The CA concluded that, in the circumstances of the case, the appeal court was capable of making a finding on liability; nothing turned on an assessment of live evidence, which would naturally have been a matter for a trial judge ().
The CA although expressing sympathy with the Claimant, allowed the Defendant occupier’s appeal. The CA concluded 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’ ().
It is submitted that the Court of Appeal (CA) judgment has not established any new proposition/s of law and simply restates and applies existing, well established, principles to the facts (see: ). In short, these principles are to be found in the celebrated House of Lords decision of Tomlinson v Congleton BC  UKHL 47,  1 AC 46 and in the CA’s even earlier decision in the case of Staples v West Dorset DC  PIQR 439.
It should perhaps be noted that, in Tomlinson, it was pointed out (at  per Lord Hoffmann) that the law of Occupier’s Liability is premised on two rebuttable presumptions: under the 1957 Act (authorised visitors) there is a presumption that a duty exists whereas under the 1984 Act (trespassers), the presumption is that there is not a duty – those presumptions are rebuttable presumptions such the the first meaningful question will be as identified by the CA in this case: identifying the danger.
It has been emphasised again in this case that when considering occupier’s liability, the Court should not fall into the trap of being initially swayed by the fact that someone has suffered an injury.
The Court should begin by identifying the danger and in this case, the danger was patently obvious – and that can be seen very clearly in the image that appears above from the Sutton Guardian.
Whilst the CA was prepared to recognise that this was an obvious risk – it was extremely relevant that there had been no recorded incidents in the past (relevant to whether there is a likelihood of serious injury).
This case supports the notion of personal responsibility: where there is an obvious risk, it is doubtful that a warning would serve any useful purpose – to require a warning is an example of ‘nanny state’ mentality.
The image shows that the bridge spans a relatively short distance and is a relatively short drop to the water below. Taking into account these physical features and the absence of any history of incident, it can clearly be argued that the risk of (and probability of) serious injury was relatively small and as such, it is arguably plain that Tomlinson offered a complete answer to the case: accidents do happen (particularly if you are prepared to run a risk) – and whilst accidents can have tragic consequences – they are not necessarily the result of blameworthy fault and this decision is to be welcomed as a victory for common sense and personal responsibility.