No duty on Council to warn of obvious risks

The Issues

The claimant had sustained a serious spinal cord injury when pushing a bicycle over a small ornamental footbridge in a park owned and occupied by the London Borough of Sutton. The bridge was humped and had low parapet side. The claimant lost his balance and fell over the edge into the water below.

At first instance, the trial judge found that there was a breach of the Occupiers Liability Act 1957. Although it was found there was no obligation on the Defendant to install new handrails it was held that the Council should have warned visitors as to the foreseeable risk of injury and/or given instructions to take a different route through the park. Contributorily negligence was found against the Claimant to the extent of 40%.

The Court of Appeal was asked to consider whether local authorities or occupiers of land should be responsible for individuals injured whilst lawfully visiting their premises, irrespective of the actual cause of accident.

Held

LJ McComb gave the lead Judgment and held that the judge had misdirected himself, in that under the 1957 Act it is necessary to first identify the relevant danger (if any) before being in a position to be able to do something about it. Whilst the low parapets of the wall could have constituted a ‘danger’ however remote, this did not trigger a duty to take further steps for two reasons:

1. The seriousness of the accident could not be equated with there being a significant risk of it occurring in the first place – as any risk, if one existed, was remote.
2. There was no duty to warn of obvious risks (in line with Staples v West Dorset [1995]).

The Court of Appeal also found that even if a risk assessment had been carried out, it would have made no difference as it would simply have stated the obvious. The Court also found no evidence that the Claimant would have acted any differently in any event.

To quote Lord Justice McCombe “not every accident, even if it has serious consequences, has to have been the fault of another”.

Comment

For Claimant’s, this is a useful reminder that an occupier only has to exercise reasonable care for the safety of any visitors. The duty is not an absolute duty to prevent all accidents and any such duty will not be triggered at all if the risk of an accident/injury is too remote, and if the risk is not reasonably foreseeable.

As to risk assessments, again, a failure to carry one out will not always result in a finding against an occupier.

This decision may have been influenced by the nature of the structure in question so perhaps should be treated with some caution but this is also a helpful reminder when dealing with such claims against Occupiers in that some accidents are just that and not the fault of anyone else.

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