Wendy Mayes discusses the recent case of Edwards v Sutton LBC [2016] EWCA Civ 1005

The issue of an occupier’s liability and its duty to protect visitors against an obvious danger was considered by the Court of Appeal in the above case.

The Local Authority appealed a decision that it was primarily liable under the Occupiers Liability Act 1957 in respect of serious injuries sustained by the Claimant. Mr Edwards was pushing a bicycle across a narrow path over an ornamental bridge in Beddington Park, Sutton when he fell over the parapet into the water and struck his head on the rocks below.

At trial the judge had apportioned liability on a 60/40 basis in favour of the Claimant despite finding that the bridge which was more than 100 years old was not in a state of disrepair and there had been no history of any previous accidents at the location. The trial judge found that the local authority should have assessed the risk of a fall, but that despite finding it should have warned users of the low parapet the local authority was not required to fit railings on the bridge.
On appeal, the issues to be decided were (1) whether the judge had misapplied the 1957 Act, (2) taken the right approach to risk assessment and (3) reached an incorrect conclusion regarding the duty to fit railings.

The first issue for the judge to decide in any Occupiers Liability case is firstly to identity the dangers, and clearly a bridge with a low parapet did present a danger. However it did not mean that in order to discharge the duty of care an occupier had to ensure all bridges were not left open to visitors without rails or express warnings. It was found that the trial judge had set too high a standard.

Turning to the issue of a formal risk assessment, such an assessment would not have led to steps being taken that would have prevented the accident or lessened the likelihood of its occurrence.

Although the existence of modern requirements for side barriers to be fitted to new structures did not mean that occupiers were liable if an older structure did not meet those standards. The fitting of railings would have altered the character of the bridge and would have been disproportionate to the remote risk which in the local authority’s history had not occurred.

The Local Authority’s appeal was allowed.

Whilst owners and occupiers will welcome this decision, it does not mean that they should ignore the duty they owe to visitors to be safe in using their premises. They need to be alert to dangers on their premises, carry out regular risk assessments and implement any measures to remedy defects identified however at the same time to consider whether the cost of such a remedy is proportionate to the likelihood of the risk/accident materialising.

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