This briefing will give occupiers of land an insight in to the unpredictability of the outcome of claims against them by visitors, particularly those who suffer serious injury.
Christopher Edwards v London Borough of Sutton (2014) EWHC 4378 (QB)
This tragic case, resulting in catastrophic injuries to the claimant, was that of someone out to improve their cycling skills at the age of 64 years. The scene, an ornamental parkland bridge - a lesson in the need for risk assessments and appropriate warnings taking account of who might use the bridge, and come a cropper.
Beddington Park in Sutton was developed in Victorian times and various bridges cross the various waterways.
The claimant was 64 years old. In September 2010, his wife had not cycled for many years. She had booked herself on to a cycling proficiency course. She drove a van to the park and took her bicycle with her. He cycled to the park. They cycled to and fro in the park and the route brought them to a small stone ornamental bridge, probably constructed when the gardens were laid out in Victorian times.
It was 85cm/3ft wide, and it had 30cm/1ft high low parapet walls either side. The top of the parapet walls were 120cm/4 feet from the water surface and the water was 46cm/18 inches deep. There were rocks in the water.
Both dismounted their bikes and intended to walk back to the car park via the ornamental bridge.
He was pushing his bike so that it was between him and the side of the bridge. All of a sudden the bike pulled away from him and pulled him off balance. He fell over the side of the bridge on to the large rocks beneath and hit his head, shoulder and back. He could not say what caused the bike to pull away.
He ended up with back pain, a head injury, a neck injury/pain and at the time of the trial needed a wheelchair for mobility.
He claimed against the local authority under the Occupiers Liability Act 1957 which provides a duty on occupiers 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.
One of the defence witnesses was a qualified civil engineer, having worked for 25 years as a bridge engineer with the defendant, engaged primarily on highway matters. The bridge carried heavy footfall and he confirmed that ideally a parapet wall should be about 115cm/4ft high to prevent people accidentally falling off it or being pivoted from a lower height and a low parapet can be dangerous, more dangerous than no parapet, because if you catch it, it may pivot you over.
The judge found as fact:
- Neither when the bridge was constructed nor at the date of the trial had there been any applicable standards to which the bridge was required to conform
- There was no, let alone any relevant, history of accident or of injury or of complaint
- There was never a formal structured assessment of risk by the council in relation to pedestrians on the bridge
- There were scant physical inspections of it
- In 2014 a tarmac fillet was placed to rectify a tripping hazard on the ascent as approached from where the claimant had come
- There was clear potential to trip at the point where the tarmac of the pathway meets the paved surface of the bridge itself (though note the claimant did not give evidence of a trip)
- The low parapet could be dangerous
In his judgment the judge found that the degree of risk to pedestrians using the bridge may not have been great, but he was not prepared to say it was slight. But the height above the stream, coupled with the rocks below, meant that the consequences included the risk of catastrophic injury, including, for example, the possibility of a child going over the parapet being rendered unconscious by striking a rock in the stream below, lying face down in it and drowning. The risk was neither identified nor addressed.
If an occupier does not protect a place that gives rise to a foreseeable risk of catastrophic injury, it must take other measures that do not involve the reconstruction or rebuilding of the structure in order to protect users. It must at the very least warn users of the dangerously low parapet on this narrow bridge and either caution them to particular care, or divert them to other easily available or safer routes towards the car park destination.
The claimant was a sufficiently compliant individual that he would have heeded a warning sign. However, he needed to be particularly vigilant since he knew it was a particularly narrow bridge and he could see the parapets were particularly low. He failed to negotiate it safely and he offered no reason why that was so. Whatever caused him to lose his balance and fall must have been both blameworthy and causative. The defendant was liable for failing to warn or prohibit the use of the bridge but the claimant was guilty of 40 per cent contributory negligence.
This case would not have been unusual several years ago but in recent times the approach of the courts to arguably obvious, and low, risks of this nature have been more favourable to occupiers and tend towards a greater onus on claimants to look after themselves. The Enterprise and Regulatory Reform Act 2013 takes a similar approach in relation to accidents at work. In the light of the current environment the judgment could be seen as rather “over the top”. We await with interest the outcome of the local authority’s appeal to the Court of Appeal, due to be heard in February 2016.