18 October, 2016
The Court of Appeal has handed down a decision in the appeal of Edwards v London Borough of Sutton (2016).
The claimant sought damages after he fell with his bicycle from an ornamental bridge into a stream in a local authority park suffering a serious injury. The bridge was narrow and had a low parapet about 30cm high. At first instance, it was found that the ornamental bridge presented an obvious danger and the local authority should have posted signs warning of the danger in order to discharge its duty to take reasonable care for the safety of visitors pursuant to the Occupiers Act 1957.
The Court of Appeal overturned the first instance decision, concluding "not every accident (even if it has serious consequences) has to be the fault of another". McCombe LJ gave the lead judgment stating that the Judge had failed to identify what the relevant danger was before considering whether the occupier had a duty to do anything about it.
Bridges of this type are common in public areas and the Judge noted that the low walls may constitute a 'danger', however this type of feature did not trigger a duty on the local authority to take any further steps. A formal risk assessment would not have lessened the accident risk, and the provision of side barriers would not have been proportionate.
The danger was obvious to users, and occupiers are not duty-bound to protect against obvious dangers.
The appeal was dismissed.
In his judgement, McCombe LJ remarked that "an occupier is not an insurer against injuries sustained on his premises". The Courts pragmatic stance on this issue is reassuring. The Courts do not expect occupiers to take every step to eliminate all possible risk but to act reasonably.
We recommend that local authorities with similar features ought to give formal consideration to the safety of the feature and to carry out a written risk assessment. There is no duty to warn of obvious risks, but where a risk is foreseeable, the occupier ought to take steps to protect users. When assessing whether the occupier has acted reasonably the Court will balance the risk of injury and its seriousness against the cost and feasibility of preventive measures. In this instance, the Court remarked that there was no requirement to fit railings to the bridge. The modern requirement to fit side railings does not mean that occupiers are liable if an existing structure does not meet those standards. Additions to the bridge such as railings would have significantly altered the bridge's character, and would have been out of proportion to a remote risk which had never materialised in the bridge's history.