Edwards v London Borough of Sutton

Introduction

This is an appeal from the judgment and order of 8 December 2014 of Judge Gore QC (sitting as a Judge of the High Court) whereby he ordered judgment to be entered for the claimant (Mr Christopher Edwards – hereafter “Mr Edwards”) for 60% of such damages as were to be assessed in his favour, in respect of personal injury sustained by him in an accident in a public park under the control of the defendant (London Borough of Sutton – hereafter “Sutton”).

The judge found Sutton to be primarily liable for breach of the common duty of care arising under the Occupiers’ Liability Act 1957 in respect of serious injury sustained by Mr Edwards when, on 10 September 2010, he fell from a small ornamental footbridge in the park, apparently onto a rock or rocks in the water below. The judge found Mr Edwards to have been contributorily negligent in the accident to the extent of 40%.

Permission to appeal was granted to Sutton by order of 30 March 2015 of Tomlinson LJ. Sutton argues that the judge was wrong to find it liable at all to Mr Edwards for the injury sustained and asks this court to set aside the judgment and to enter judgment in its favour. By order of 11 June 2015, Tomlinson LJ gave Mr Edwards permission to appeal against the judge’s finding that Sutton was under no duty to provide better side protection for the bridge and against the finding of contributory negligence that the judge made against him.

The judge gave a fuller review of the evidence that he heard than appears to me to be necessary for the purposes of the appeal and cross-appeal. His judgment is available publicly with the neutral citation [2014] EWHC 4378 (QB). The following summary suffices for present purposes.

On the date of the accident, Mr Edwards was 64 years old, shortly to be 65. He and his wife, Mrs Elizabeth Edwards, had decided to take up cycling as a form of exercise. Mr Edwards had been a fairly keen cyclist in earlier years, but had been less active in that respect more recently. He and Mrs Edwards had been more inclined to walk for their exercise. However, in 2007 Mr Edwards had had a hip replacement operation and he found lengthy spells of walking uncomfortable. He found cycling less difficult. Mrs Edwards had done little cycling since she was a young girl and was somewhat apprehensive about taking it up again, particularly on public roads. The couple had acquired new bicycles and Mrs Edwards had booked herself onto a cycling proficiency course which was to take place in the near future. They had decided to make an initial practice ride, largely for Mrs Edwards’ benefit, around Beddington Park in Sutton, some two or three miles from their home. The weather on the day was described in evidence as “dry, cold [and] crisp”. The park has the benefit of a circular route amenable to cyclists and to pedestrians and also a separate walkway for pedestrians only. The ornamental bridge in question in the proceedings is situated on the walkway.

Mr and Mrs Edwards had completed some three circuits of the park (lasting about 20 minutes each) when they decided to stop cycling and to walk back to Mrs Edwards’ van in which she had arrived (with her cycle) at the park and which she had parked in the adjoining public car park; Mr Edwards had cycled to the park. The idea was that they would walk their bikes back to the van. Mr Edwards would help his wife to load her machine back into the vehicle; she would then drive to their home in Mitcham and Mr Edwards would cycle back. They dismounted their bikes and proceeded along the walkway towards the car park. After a short spell seated on one of the park benches at the park’s lakeside, they continued on their way on the pedestrian walkway, pushing their cycles. Mr Edwards was in front and Mrs Edwards followed a short distance behind.

Their route along the pedestrian walkway took them over the bridge in question. The judge found that the incident occurred at a time shortly before 1 p.m. Mr Edwards described what then happened in his witness statement in these terms:

“16.

Liz and I were walking in single file pushing our bikes across the bridge. I was in front, with Liz about 5 meters [sic] behind. A little way before we reached the bridge, I turned to ask Liz if she was ok, then I carried on. I did not have my helmet on at this point. By the time I reached the bridge I was facing forward once again, and I was pushing my bike on my left hand side using two hands, so that it was between me and the side of the bridge.

17.

All of a sudden I was aware of the bike pulling away from me, and pulling me off balance. I tried to keep my balance, but I couldn’t, and fell over the side of the bridge onto the large rocks beneath me. I do not know what I hit first, I remember two bangs as I hit the rocks, I do not know if I flipped over. My bike also followed me and fell into the water, landing upside down, resting on the saddle and handlebars.

18.

I hit my head, neck, shoulder and my back, I cannot recall in which order. I landed with my head face down in the water between the rocks. I could not move and my head kept dropping under water level. I do not know whether I lost consciousness but I was very cold and winded. I think the shock of the fall may have affected my memory.”

The judge referred to certain answers given by Mr Edwards in his oral evidence as follows:

“12.

In his oral testimony when cross-examined by Mr. Warnock, he told me as follows: “I completely fell off the bridge and I don’t think I was paying attention to where I was falling and it happened so quickly.” He was asked whether he remembered where his bicycle landed and he told me that he did not have a clue and he had no idea and when asked in what direction the bike pulled him, he said it was to his left. He said that at the time of this approach he was facing ahead with two hands on the bicycle and he was asked: “Can you help with why the bike pulled away to your left?” and his answer was that he had no idea. He was asked whether he was taking care crossing the bridge and he rather hesitantly replied: “Well, yes”. He was asked whether he had seen the bridge on its approach and seen that it was narrow and had low walls and his answer was, “Yes, I mean, possibly did, yes”. He was asked whether he was aware or had identified what was in the stream and he said: “Well, I wasn’t paying that much attention to the stream and the rocks, you know. I was more aware of crossing the bridge safely”. Then he was asked: “But you cannot say what caused the bike to pull away” and his answer was: “No”. He confirmed that it was the bike that was pulling him off balance.

13.

He was asked whether anything had happened or caught him in some way such that he tripped and he said: “I am not aware that the bike caught anything or done anything or that I tripped. I just know that the bike went towards the edge of the bridge and that’s where I went over”. He said that it was the bike that pulled him over, because he lost his balance and that in doing so he was facing forward and did not turn around at the time leading up to this event.

Mrs Edwards described the matter in this way in her statement:

“15.

The bridge is quite narrow and so Chris and I were walking in single file with Chris in front and me behind… Chris was not wearing his helmet. We weren’t rushing and we were chatting, taking our time. I was feeling very pleased that it had all gone so well and was looking forward to coming out again.

16.

Shortly before the path joined the bridge, Chris asked me if I was okay. I know that he had been worried about how I would manage. I told him that I was absolutely fine and Chris turned round so that he was facing forwards once again before walking onto the bridge.

17.

Several moments later, as he was on the bridge, I looked up and saw Chris falling. He started to move his arms in an attempt to regain his balance and for a moment it looked as though it was going to work but then his balance tipped the other way and over he went. His bike also went over the side of the bridge.”

The judge recorded some further oral evidence from Mrs Edwards as follows:

“19.

She too was cross-examined by Mr. Warnock and in cross-examination she told me that he was losing his balance towards his left. Asked whether it happened at the time that he turned round to ask her if she was all right, she said no. Asked: “So as far as you were concerned he was just walking straight ahead and the next thing you saw him losing his balance”, she replied: “Yes”. “Was he on the bridge at that point?” Her answer was that he was nearly up before the middle where he fell, before the middle; that is, the middle of the bridge. When asked the question: “Up towards the highest part of the bridge?” she said “Yes”. When asked whether he was on his bike when he fell she said: “No”.”

There was no other “eye-witness” evidence to the accident.

There was an issue before the judge as to whether Mr Edwards had been riding his bicycle or had been pushing it on foot when the accident occurred. The judge decided that Mr Edwards had been on foot, pushing his bicycle, and that finding is not contested by Sutton on the appeal.

Thus, the precise cause of Mr Edwards’ loss of balance was not established on the evidence. No relevant trip hazard that might have caused a loss of balance was identified on the surface of the bridge and no reason for Mr Edwards’ bike to pull him to the left was established. However, by one means or another, the fact remains that Mr Edwards fell over the left hand parapet of the bridge and into the water, with his bicycle.

The consequences of Mr Edwards’ fall were very serious for him. As I understand is not disputed, he suffered a spinal cord injury at T11/12 level, rendering him paraplegic and wheelchair dependent. We were told by counsel that he is able to stand but that he cannot ambulate. He sustained a tendon avulsion injury to the left arm, a rotator cuff injury to the left shoulder and bruising and laceration to the head and face.

The dimensions of the bridge and the depth of the water below, provided to the court by an expert witness (Mr Alford) instructed on behalf of Mr Edwards and recorded by the judge, were as follows:

“The pedestrian surface of the bridge consists of irregular-shaped stone flags, cemented in place. Details are as follows:- Length of arched pedestrian surface – 3280 mm. Width or arched pedestrian surface – 850 mm. Angle of incline (east side) – 9.9-14.1 degrees. 5.4 Low stone parapets flank the pedestrian surface. That on the left (i.e. on the left when crossing the bridge from east to west) has a maximum height of 260 mm. That on the right has a maximum height of 300 mm. Their tops would be at about mid-shin height of a person standing on the bridge”. I digress to say that that in fact is graphically and exactly illustrated by one of the photographs produced by Mrs Edwards. At 5.5 she continues: “The vertical drop from the top of the left parapet to the surface of the water is 1150 mm. 5.6 The vertical drop from the top of the right parapet to the surface of the water is 1200 mm. 5.7 The depth of the water, below the left parapet, is 460 mm.”

For my part, I found the dimensions in millimetres somewhat difficult to work with. Doing the relevant calculation, it seems that the bridge’s track was arched and about 3.28 metres in length. The width was 0.85 metres. The incline upwards in Mr Edwards’ direction of travel was between about 10 and 14 degrees. The parapets were 0.26 metres (to the left, the side of Mr Edwards’ fall) and 0.30 metres (to the right).

For Mr Edwards it was said that Sutton had failed to take reasonable care to see that Mr Edwards as a visitor to the park was safe in using the bridge for a purpose for which he was permitted to use it. It was argued that Sutton ought to have provided side protection barriers to the bridge of some 1.1 metres in height, in line with “authoritative publications” such as a British Standard Specification for Pedestrian Restraint Systems (1995). Further or alternatively, it was said that Sutton “failed to warn visitors to the park of the dangers posed by the bridge”. It was said that the bridge’s parapets posed their own danger as a pivot point over which a person might fall. Further, it was added, Sutton had failed to carry out any, or any adequate risk assessments in respect of the bridge.

For Sutton it was argued that there was no breach of duty. The bridge had been there for many years (perhaps since as long ago as the 1860s). At the opening of the appeal we heard an application on behalf of Mr Edwards to admit into evidence on the appeal an aerial photograph (not before the judge) from 1987 which, it was said, showed the metalled path leading to the bridge at the time of the accident had not been present in that year and that, therefore, the “footfall” to the bridge was not likely to have been as heavy throughout the bridge’s existence as had been contended for by Sutton. We decided to admit the photograph “de bene esse” and to rule on whether it should formally be admitted into evidence on the appeal when we knew a little more about the background to the case and the arguments of the parties. I return to my proposed resolution of this question below.

It is urged for Sutton that the height, width and incline, and the construction of the bridge parapets were all obvious features. It was a pleasing (and locally listed) ornamental feature and there was no record of any accident occurring from its use. In such circumstances, it is argued, there was no obligation to construct side barriers. Nor was there any obligation to warn as to the use of the bridge whose state and construction were obvious. Sutton argues that it was not shown that Mr Edwards would have heeded any warning posted; there was no evidence that he would have acted otherwise than as he did.

As to the immediate cause of the accident, the judge said this (at paragraph 25 of the judgment):

“…I find that the claimant was walking not riding, that the bike was to his left between him and the parapet. He lost his balance for an unknown and undemonstrated reason. He was looking forwards not turning back at the time and he lost his balance and its associated momentum pitched him over the parapet and to injury.”

Looking at the evidence before him as a whole, the judge made the following assessment (paragraph 43 of the judgment):

“In my judgment, this evidence in the round shows, firstly, there was never a formal structured assessment of risk presented by this bridge to pedestrians. Secondly, there were scant physical inspections of it, other than perhaps walking inspections annually, concentrating, in my judgment, on the integrity and safety of the surface from the perspective of tripping hazards and no more. Thirdly, there were surface integrity issues such that in 2014 a tarmac fillet was placed to rectify a tripping hazard on the ascent as approached from where the claimant had come. Fourthly, the photographs taken by Mrs Edwards, especially that at trial bundle page 95, show clear potential to trip at the point where the tarmac of the pathway meets the paved surface of the bridge itself. Fifthly, as was conceded by Mr. Scandachanmugarasan in terms, the low parapet could be dangerous. Sixthly, neither when the bridge was constructed nor to this day have there been any applicable standards to which this bridge was required to conform. Seventh, there is no, let alone any relevant, history of accident or of injury or of complaint.”

In an important passage in his judgment at paragraphs 45 and 46 the judge said this:

“45.

The claimant’s case is that the defendant’s duty extended to taking reasonable care for those who attended the park. This duty, the claimant submits, extended to those visitors who use the bridge. To the contrary, the defendant’s case is that on no basis can the defendant be held responsible, because there was nothing unsafe about the premises and neither was there a breach of duty under the Occupiers’ Liability Act 1957, nor did the defendants owe or were in breach of any other freestanding duty of care. I was attracted to begin with by the submission of Mr. Warnock that there was nothing whatsoever wrong with the state of the premises. On mature reflection, in my judgment, that misses the point and the language of section 2 of the 1957 Act which does not demand safety of the premises, as such, as a state, but demands that the visitor be “safe in using” – I emphasise that word – “the premises for the purpose for which he or she is invited or permitted by the occupier to be there”. This is in marked distinction, for example, to the position under the Occupiers’ Liability Act 1984 governing the liability of occupiers to trespassers, because section 1(1)(a) of that statute provides in terms that it regulates whether a duty is owed by reason of any danger due to the state – and I emphasise that word – of the premises.

46.

In my judgment, whether reasonable care has been taken in all of the circumstances to see that a visitor will be reasonably safe if using the premises depends at least in part upon what is foreseeable or, to adopt the language of the editors of Clerk and Lindsell on Torts at paragraph 2-149 whether the accident was “within the scope of foreseeable risk”. Reliance may be placed in this regard upon the decision of the House of Lords in Hughes v Lord Advocate (1963) AC 837, not cited by either Mr. McDermott or Mr. Warnock, but referred to by me in the course of submissions during the case where the fact that the damage occurred in an unforeseeable way was held not to mean that it was not foreseeable in a sense relevant in the law. Thus the House of Lords was able to hold in that case that even though the extent of the pursuer’s injury was not foreseeable and the precise chain of events leading to his injury was not foreseeable, nonetheless his claim succeeded. Thus, even if the precise chain of events leading to the accident was not foreseeable, not perhaps the extent of the injury sustained by the claimant, since injury due to fall, for example, in the event of trip was foreseeable, so liability could follow.”

The judge then referred to Tomlinson v Congleton BC [2004] 1 AC 46. Then at paragraph 52, he said this:

“The difficult balancing exercise, it seems to me, requires me to consider the degree of risk of injury, the seriousness of injury if it were to eventuate, the cost or ease of avoiding it and the amenity value or social value of the premises and the activity being undertaken and it is the degree of risk amongst those four factors that is the most important factor.”

The judge recognised authorities, cited to him by counsel for Sutton, in which occupiers have been held not to have to modify existing premises built in accordance with prevailing standards at the time of construction: McGivney v Golderslea Ltd. (1997, unreported), and Japp v Virgin Holidays Ltd. [2013] EWCA Civ 1371. The judge cited the judgment of Richards LJ in the second of these cases, at paragraph 20 of that judgment, as follows:

“I am satisfied that the appellant’s submissions on this issue are correct. Where the question is whether a structural feature of a building complies with local standards, the starting point must be the standards applicable at the date of design and construction, which in this case means those applicable at the date when the balcony doors were installed. There will be circumstances where changing standards make specific provision for further action to be taken in relation to a structural feature of an existing building (the regulations relating to the removal of asbestos may provide an example). Subject to that, however, I do not think that there can be a duty to engage in a constant process of updating of existing buildings, by rebuilding or refurbishment, so as to reflect changes in standards”.

“21.

The one authority directly in point, McGivney v Golderslea Limited (Court of Appeal judgment of 6 November 1997), strongly supports this approach”.

On risk assessments, the judge quoted Smith LJ in Uren v Corporate Leisure (UK) Ltd. [2011] EWCA Civ 66 at paragraphs 41 and 42, as follows:

“I would not wish judges to have the idea that risk assessments are unimportant and can never affect the outcome of a claim. I would not wish them to think that all that matters is an objective assessment of safety by the court. Sometimes the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside.”

The judge expressed his conclusions at paragraphs 59 to 64 of the judgment. He found that the risk of a fall ought to have been identified and assessed, for the reasons referred to in Uren’s case, “even accepting that risk assessment is not a panacea”.

The judge found that the law did not require Sutton to fit side railings to the bridge. However, he found that Sutton should have warned users of the low parapet. He put it this way:

“61.

I accept the submissions that the law does not on the facts I have found impose a duty to fit railings and, therefore, I reject the claimant’s case on that point. However, if, as the occupier is entitled on that finding to do, it does not protect a place that gives rise to a foreseeable risk of catastrophic injury, it must take other measures, in my judgment, that do not involve the reconstruction or rebuilding of the structure in order to protect users. It must, in my judgment, 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. Such steps involved no significant cost on the evidence before me. They would not in any way reduce the amenity value of the bridge in the way that it was suggested by Mr. Warnock that the amenity value would be affected by the construction of railings which he implied would be so unsightly as to take away from the visual attractiveness of the bridge.”

62.

A warning sign would not cause the same amenity offence. I am satisfied that the claimant was a sufficiently compliant individual that he would have heeded such a warning had it been made.”

In paragraphs 63 and 64, the judge addressed the question of contributory negligence and found as follows:

“63.

However, I am also satisfied that absent any demonstrated reason for his loss of balance that did not involve any fault on his part, for example, fainting or dizziness or the like, the danger of this bridge called for a degree of vigilance in crossing it that he simply cannot have exhibited. It matters not for this purpose whether he tripped or lost his balance because he was looking away to his wife or elsewhere, albeit that I have found that he was not at the time. Also, admittedly somewhat speculatively, I ask why did he not just let go of the overbalancing bicycle. Mr. McDermott’s reply “momentary inadvertence” is no real answer. He needed to be particularly vigilant. He knew it was a particularly narrow bridge. He could see the parapets were particularly low. He failed to negotiate it safely and he offers no exculpatory reason why that was so. Whatever caused him to lose his balance and fall, therefore, in the absence of an exculpatory reason like a faint or attack of dizziness, must have been both blameworthy and causatively potent. However, the primary responsibility, in my judgment, lay with the defendant.”

The grounds of appeal raise six points against the judge’s decision. The first three of these are argued as one in the skeleton argument for Sutton on the appeal. On these grounds, Mr Warnock QC and Mr Harding for Sutton argue that the judge misapplied the 1957 Act. They say that he decided that section 2 of the Act required Sutton as an occupier to take reasonable care to keep its visitor safe in using the premises without regard to the question of whether the bridge was unsafe in the first place. Mr Warnock argues that the judge paid insufficient regard to section 1 of the Act which provides that the following sections of the Act have effect:

“to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them”.

It is submitted that there has to be risk of a kind which gives rise to the duty, i.e. a danger due to the state of the premises. It is submitted that there was no relevant “danger” in this case. Reliance is placed upon Tomlinson in the speech of Lord Hoffmann at paragraph 26 to 29. Mr Warnock argues that the bridge did not constitute such a danger: it had no trap; the fact that it was humped and had low parapets with a narrow path over water was obvious to anyone using it. In its long history there was no recorded incident of any kind involving someone falling off the bridge, in spite of the park being long open to the public and this bridge having had a “heavy footfall”. Further it is said, that Sutton was entitled to expect that Mr Edwards would take reasonable care for his own safety, as others had done. The judge’s findings on contributory negligence, it is said, demonstrate the fallacy of finding any liability on the part of Sutton.

It is further argued that there is no duty to warn of the obvious. Mr Warnock refers to Cotton v Derbyshire Dales DC (CA, unreported) 10 June 1994, where Kennedy LJ said (inter alia), “…it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff”. It is submitted that the judge speculated as to various ways in which an accident might happen on the bridge without concentrating upon whether Mr Edwards’ accident was reasonably foreseeable. It is argued that the judge made the error identified by Lord Hobhouse of Woodborough in Tomlinson (in paragraphs 79 to 80) in confusing the seriousness of an outcome with a degree of risk that that outcome will occur. It is not possible to say that there was no risk because Mr Edwards suffered the accident. However, the question is, Mr Warnock submits, whether the risk was objectively sufficient in magnitude to trigger the duty.

On ground 4, Mr Warnock criticises the judge’s reliance upon the absence of formal risk assessment. He argues that it is necessary to identify what an assessment would have concluded and says that an assessment would not have contributed to an avoidance of this accident.

In ground 5, it is argued that a warning sign could only have a been a warning against what was entirely obvious and in ground 6 it is submitted that causation was not established as Mr Edwards did not give evidence that he would not have taken the bridge in the face of a hypothetical warning of this character.

Mr McDermott and Mr Tavares for Mr Edwards invite the court to consider whether the conclusion of the judge was one which was open for him to reach. It was submitted in their skeleton argument that the conclusion reached by the judge was within “the generous ambit within which a disagreement is possible” (per Lord Fraser of Tullybelton in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 652) and should be upheld accordingly. However, they qualified this submission to some extent when referred by the court to Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911.

It is pointed out by Mr McDermott that one of the witnesses called by Sutton acknowledged that a danger was presented by the low bridge parapets and, it is argued, mere knowledge of a danger on the part of an injured party is not enough to excuse an occupier; the injured party needs to know enough about it to enable him to avoid the danger and to be reasonably safe. The passage of evidence relied upon by Mr McDermott was in his cross-examination of Mr Tamby Skandachanmugarasan, a civil engineer employed by Sutton; it was as follows:

“MR MCDERMOTT: I understand that too, my Lord. And can I just ask you about this. The idea of a parapet being about 1,150 millimetres high is to prevent people accidently falling off it or being pivoted from a lower height, is that right?

A. That is correct, yes.

Q. And in fact a pivot – a low parapet can be dangerous, more dangerous than no parapet because if you catch it, it may pivot you over?

A. That is correct.

Q. That is correct and --.”

Next, it is argued that the judge did properly consider the safety of the bridge in the context of visitors to the park generally, including Mr and Mrs Edwards and children visitors. On this aspect, it is said that the judge properly considered the care to be taken by the likes of Mr Edwards; this was reflected in his findings on contributory negligence (although, of course, challenged on the cross-appeal).

Finally, Mr McDermott, in addressing the foreseeability and likelihood of risk, points to what the judge said in closing argument in a series of exchanges with Mr Warnock, concluding thus:

“JUDGE GORE: For all manner of reasons, all of which are foreseeable, and none of which have to necessarily be proven. You could slip, you could trip, you could overbalance because of inattention, because you’re turning around and looking the other way at your wife behind, or you might be knocked off balance by someone coming the other way, or you might be managing your cycle on foot inappropriately such as – such that your cycle came into contact with the wall, and threw you off balance, or it might because you’re riding your bicycle badly in an area where you shouldn’t be riding it. There are many, many obvious ways in which you could lose your balance.”

The claim was brought under the Occupiers’ Liability Act 1957. The relevant provisions are sections 1(1) and 2(1), (2) and (3) the Act. They provide as follows:

“1.

Preliminary

(1)

The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them….”

“2.

Extent of occupier’s ordinary duty

(1)

An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)

The common duty of care is a duty 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.

(3)

The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a)

an occupier must be prepared for children to be less careful than adults; and

(b)

an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so….”

The judge perceived there to be a contrast between those provisions and the parallel provisions of the Occupiers’ Liability Act 1984 regulating the duties owed to persons other than visitors, i.e. principally trespassers. As noted above, the judge said (in the passage quoted above) that section 2 of the 1957 Act did not demand the safety of the premises as such but that the visitor be “safe in using the premises for the purpose for which he or she is invited or permitted by the occupier to be there”. He contrasted this with the words of section 1(1) of the 1984 Act which provides as follows:

“(1)

The rules enacted by this section shall have effect, in place of the rules of the common law, to determine-

(a)

whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b)

if so, what that duty is.”

It seems to me, however, that the terms of section 1 of the 1957 Act and section 1(1) of the 1984 Act are not materially different in the relevant respects. Both Acts regulate the different duties imposed on an occupier, in respect of visitors and others, “[in respect of dangers/by reason of any danger] due to the state of the premises or things done or omitted to be done on them”.

Thus, as it seems to me, it is necessary to identify what danger(s) there is/are before one can see to what (if anything) the occupier’s duty in each case attaches. That that approach is necessary is clear from the speech of Lord Hobhouse in Tomlinson’s case at paragraphs 69 to 70 and the speech of Lord Hoffmann at paragraph 29. For my part, I do not think that the judge focussed adequately on this issue. The case cited by the judge in paragraph 46 of the judgment: Hughes v Lord Advocate, was one in which there was a clear potential danger presented by the lighted lamp. It was, as Lord Reid put it, “a known source of danger” ([1963] AC at p.845).

Mr McDermott argued at our hearing that the danger presented in this case was “simple” and the judge did not have to be precise. However, when pressed further on the point by the court, he said that danger “due to the state of the premises” was the low parapets and the potential for a fall on to rocks. As for “things done” on the premises, Mr McDermott pointed to the actions of persons such as the claimant wheeling a bicycle as they are permitted to do. With regard to “things…omitted to be done” he relied upon the failure to provide guard rails.

Looking first at “things done or omitted to be done”, I find it hard to see how this activity on Mr Edwards’ own part, of walking with his bicycle over this bridge, constituted a danger for these purposes and the failure to provide guard rails seems to me to add nothing at all to whatever may be derived as a danger arising from the “state of the premises”.

Looking then at “the state of the premises”, i.e. of the bridge, it is impossible to see how the third and fourth features identified by the judge in paragraph 43 of the judgment could be material: there was no suggestion that the “tarmac fillet”, placed to rectify a tripping hazard, or the join between the bridge’s surface and the pathway played any part in Mr Edwards’ accident. That leaves, in effect, the acknowledgment by Mr Scandachanmugasran that the low parapet could be dangerous as the only feature of “danger” from the physical state of the bridge. In this regard, the expert witness, Mr Alford, said that the sides of the bridge were “effectively unguarded”. Therefore, he saw no difference between a bridge with low parapets and a bridge with no side barriers at all, while the judge seems to have seen some additional peril from the potential for a pivot over a parapet, adding to the danger of a fall. Of course, whether the danger is such as to trigger the duty under the Act is a matter of evaluation for the court nonetheless.

One can see that an unfenced bridge or a bridge with low parapets will present more danger of a fall than would a bridge with high guard rails. There are, of course, many such unprotected bridges up and down the country in all sorts of locations. In argument, we discussed golf courses, where plank bridges, with no side rails, crossing over ditches are common and have to be negotiated by golfers with trolleys. Ornamental bridges with low walls, together with water features, are likely to be common features of decoration in public gardens. Any structure of this type presents the risk that the user may fall from it. Unlike natural land features, such as steep slopes or difficult terrain or cliffs close to coastal paths, which Lord Hobhouse in Tomlinson said could hardly be described as part of the “state of the premises”, it seems to me that a bridge with no sides or only low ones may present a danger from the “state of the premises” such as to give rise to the common duty of care. However, while I am prepared to assume that there was objectively a “danger” arising from the state of the premises in this respect here, does this mean that, in order to discharge the common duty of care, arising from that objective possibility of danger, no such bridges must be left open to visitors or must not be left open to visitors without guard rails or express warnings? In my judgment, the answer to this question is a clear “no”.

The reason for this answer lies, I think, in two well recognised principles of law. First, there is the proper treatment in law of the concept of risk. Secondly, occupiers of land are not under a duty to protect, or even to warn, against obvious dangers. Both these propositions appear in the speeches in Tomlinson’s case.

The first proposition can be taken from the speech of Lord Hobhouse at paragraphs 79 and 80 as follows:

“79.

To suffer a broken neck and paralysis for life could hardly be a more serious injury; any loss of life is a consequence of the greatest seriousness. There was undoubtedly a risk of drowning for inexperienced, incompetent or drunken swimmers in the deeper parts of the mere or in patches of weed when they were out of their depth although no lives had actually been lost. But there was no evidence of any incident where anyone before the claimant had broken his neck by plunging from a standing position and striking his head on the smooth sandy bottom on which he was standing… The park had been open to the public since about 1982. Some 160,000 people used to visit the park in a year. Up to 200 would be bathing in the mere on a fine summer’s day. Yet the number of incidents involving the mere were so few. It is a fallacy to say that because drowning is a serious matter there is therefore a serious risk of drowning. In truth the risk of a drowning was very low indeed and there had never actually been one and the accident suffered by the claimant was unique. Whilst broken necks can result from incautious or reckless diving, the probability of one being suffered in the circumstances of the claimant were so remote that the risk was minimal. The internal reports before his accident make the common but elementary error of confusing the seriousness of the outcome with the degree of risk that it will occur.

80.

The third point is that this confusion leads to the erroneous conclusion that there was a significant risk of injury presented to the claimant when he went into the shallow water on the day in question. One cannot say that there was no risk of injury because we know now what happened. But, in my view, it was objectively so small a risk as not to trigger section 1(1) of the 1984 Act, otherwise every injury would suffice because it must imply the existence of some risk. However, and probably more importantly, the degree of risk is central to the assessment of what reasonably should be expected of the occupier and what would be a reasonable response to the existence of that degree of risk. The response should be appropriate and proportionate to both the degree of risk and the seriousness of the outcome at risk. 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.”

A similar statement appears in the speech of Lord Oaksey in Bolton v Stone [1951] AC 850, 863 as follows:

“The standard of care in the law of negligence is the standard of an ordinary careful man, but in my opinion an ordinary careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen. Many foreseeable risks are extremely unlikely to happen and cannot be guarded against, except by the most complete isolation.”

Allied with the issue of foreseeability of likelihood risk is the balance of risk, gravity of injury, cost and social value. As to this, I would refer to paragraph 34 of Lord Hoffmann’s speech in Tomlinson:

“The balance of risk, gravity of injury, cost and social value

34.

My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.”

While there are limits on social value in a case of this sort, the amenity of this bridge as a feature in the park should not be ignored entirely.

The second proposition is, in my judgment, a particularly forceful consideration in this case. That there was some risk of a fall and the potential for injury must have been obvious. The approach to the bridge was clear and unobstructed. The width of the bridge and the height of the parapets were also obvious to the eye. The bridge was also over water, with whatever might lie beneath its surface. Any user of the bridge would appreciate the need to take care and any user limiting the width of the bridge’s track, by pushing a bicycle to his side, would see the need to take extra care.

In my judgment, the present case is similar to Staples v W. Dorset DC [1995] PIQR 439. In that case, the defendant council was the “occupier” of the Cobb, a harbour wall at Lyme Regis to which the public had access as a promenade. The wall sloped downwards towards the sea. The surface had a tendency to slipperiness when wet. It had a drop of 20 feet to rocks on one side and one of 8 feet to a lower walkway on the other. The plaintiff, positioned some 3 feet from the edge, crouched to take a photograph, lost his footing and fell from the wall sustaining injury. There were no warning signs against a slippery surface. The judge held that there should have been. That decision was reversed on appeal. This court held that a warning would not have told the plaintiff anything that he did not know from his own observation; the most that could be said was that if there had been a notice the plaintiff might have behaved with more circumspection, but a bare possibility was not enough to establish causation in any event.

It was common ground that the duty of care under the 1957 Act arose in that case. However, there was no liability for failure to warn. Kennedy LJ said:

“It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without a warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability (see s.4(a) above); but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required. So, for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff (see Cotton v. Derbyshire Dales District Council (June 10, 1994, C.A., unreported). In the present case, as Mr Tyson for the respondent acknowledges, he must succeed under the Occupiers’ Liability Act or fail, because, although the judge also referred to negligence at common law, there was no other relationship between these parties that could give rise to liability.”

Evans LJ added this:

“I find myself driven to the conclusion that the respondent cannot attribute negligence to the appellants in circumstances where nothing was known to them, or would have been known to them if previous inspections had been made, which he did not know and appreciate for himself. If the cause of his accident was the general state of the algae-covered strip at the seaward edge of the Cobb, combined with the pronounced 1:5 slope of the top, then the danger posed was obvious and in fact was appreciated by him. If the cause was an isolated slippery path, which had not manifested itself as a source of potential danger during the 165-year history of the Cobb, then that was not something which the appellants should have foreseen, nor is it clear what the terms of a specific warning would have been. Whichever it was, the appellants cannot be held liable in negligence by reason of their failure to erect warning notices before his accident occurred.”

Nourse LJ agreed with both judgments.

The court also found that it was in as good a position to evaluate the question of liability as had been the trial judge; nothing turned on an assessment of witnesses. To my mind, the same is true here, having proper regard to the principles emerging from Re B (supra).

A notable feature of the Staples case was the absence of previous accidents, which was perhaps surprising given the nature of the structure, its location and its tendency to be slippery. The absence of accidents is an important feature in the case before us. There is no recorded accident of any character, let alone with the type of consequence that befell Mr Edwards. When weighing up the remarks of Lord Oaksey and of Lord Hobhouse (quoted above) in the context of this case, it appears to me that the probability of such an accident could properly have been sufficiently remote that the risk could be regarded as minimal.

That brings me to certain additional features of the case with which I should deal: a) the photograph, presented as potential fresh evidence; b) risk assessments (or their absence); c) the need (if any) to bring the bridge up to “modern” standards of protection for users.

On the first point, the photograph, I have considered its features very carefully. Out of a sense of overall justice to a severely injured claimant, we should, I believe, admit it formally into evidence. It is designed to show, as already mentioned, that the metalled footway leading to the bridge may not have been present in 1987, when the photograph was taken, and thus that the users of the bridge in earlier years may have been fewer than in more recent times. Accordingly, it is argued, the potential for accidents to have occurred may have been considerably less than contended for by Sutton.

The photograph has its limitations. It is an aerial image taken from a significant height. The bridge itself and its immediate access is obscured by a tree. It does not show that access to the bridge was barred and we cannot know what facility for access there was. Equally, there is no doubt that there has been a path to the bridge for some time and no evidence suggested that it was a merely recent addition at the time of Mr Edwards’ accident. Therefore, Sutton is entitled to say that the absence of recorded accidents is significant. I do not consider that the admission of the photograph into evidence alters the balance of argument to any significant extent for or against either party.

The judge took the view that the risk posed by the bridge should have been formally identified and assessed. He was influenced by the decision of this court in Uren v Corporate Leisure (UK) Ltd. and in particular the remarks of Smith LJ which I have quoted above. Mr Warnock pointed out all the cases (bar one) cited by Mr McDermott are decisions made in an employment law context where the employer’s duty is to take positive thought for the safety of employees beyond that owed to the general public. The one exception was Corbett v Cumbria Kart Racing Club [2013] EWHC 1362 (QB) (King J), which involved the conduct of a hazardous activity, namely a karting race in which it could well be envisaged that there were risks to the safety of spectators and assessment of potential risk to them was obviously important.

Mr Warnock also submits that the court must ask what a formal risk assessment would have produced in this case. He relied upon comments of Floyd LJ in Nicholls v Ladbrokes Betting & Gaming Ltd. [2013] EWCA Civ 1963 where it is pointed out that without a finding of what a risk assessment would have produced, the absence of such an assessment does not help a claimant.

On the facts of this case likewise, I do not see what a formal assessment would have produced (if anything at all) beyond a statement of the obvious, namely that this was a bridge with low parapets over water; persons not exercising proper care might fall off. I do not see how such a statement would have led to steps being taken that would have prevented or lessened the possibility of Mr Edwards’ accident occurring.

In resisting Mr Edwards’ cross-appeal against the judge’s finding that there was no obligation on Sutton to erect side barriers on the bridge, Mr Warnock relies heavily upon this court’s decision in Japp v Virgin Holidays Ltd. [2013] PIQR 8 in which a holiday-maker sued a tour operator in respect of an injury suffered when she walked into a glass sliding door on a hotel balcony. It was argued for her that the glass in the door failed to meet contemporary standards requiring the use of safety glass in this type of building. The court held that in deciding whether a structural feature complies with local standards, the starting point had to be the standards applicable at the date of design and construction. I have quoted above the relevant passage from the judgment of Richards LJ, with whom Tomlinson LJ and my Lord, Lewison LJ agreed,

Mr Warnock submits that in this case there were no standards, concerning side-barriers, which were directly applicable to this bridge and that, therefore, there can be no requirement upon Sutton to update the structure so as to accord with the type of standard referred to by Mr Alford as being called for on modern bridges.

I agree that the existence of new standards for side barriers to be fitted to new and different structures cannot necessarily lead to a conclusion that an occupier is liable in negligence if an older structure does not meet those standards. I do not consider, however, that such an argument necessarily relieves an occupier of liability for breach of the common duty of care when an accident, for which a serious risk of occurrence exists, results from a dangerous state of premises which could readily be remedied by proportionate works of renovation. For the purposes of the present case nonetheless, it seems to me that there was no requirement to provide this bridge with the type of side barriers advocated on Mr Edwards’ behalf. Such additions would have altered the character of the bridge significantly and to an extent out of proportion to a remote risk which had never materialised in its known history.

Mr Edwards has suffered injury which can evoke nothing but the most enormous sympathy. However, in line with the authority which I have endeavoured to cite, I find myself in agreement with Mr Warnock’s final submission in opening Sutton’s appeal 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. In my judgment, like the court in Staples’ case, I think that the standard was set too high by the judge below and I would allow this appeal and would dismiss the cross appeal.

I agree.

I also agree.