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.

Background Facts

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:

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

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

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 parties’ cases and the judge’s decision

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):

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

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

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

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:

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:

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:

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

The appeal and cross-appeal

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:

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:

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:

Discussion and my conclusions

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:

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:

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:

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

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 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:

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.