Duty of care – guarding against foreseeable risks

Posted by Malcolm Johnson on

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Man cycling on bridge - personal injury
Personal Injury specialist Malcolm Johnson reviews the case of Edwards v London Borough of Sutton [2016] EWCA Civ 1005, examining issues of duty of care in common law negligence cases.

No duty of care to fence ornamental bridge - Edwards v London Borough of Sutton [2016] EWCA Civ 1005

What was the Claimant's case about?

The Claimant was a 64 -year old man cycling around Beddington Park in Sutton. As he was pushing his bike over an ornamental bridge, he fell off and suffered very serious injuries. The precise cause of his loss of balance was not established, and there was no relevant trip hazard that might have caused a loss of balance.

The Claimant argued that the Defendant had failed to take reasonable care to see that visitors to the park were safe in using the bridge in the way that he had been permitted to use it. He also suggested that the Defendant failed to warn visitors to the park of the dangers posed by the bridge and that he had failed to carry out any adequate risk assessments.

What happened at trial?

The trial judge found the Defendant to be primarily liable for breach of the common duty of care arising under the Occupiers' Liability Act 1957, but he also found that the Claimant was contributorily negligent in the accident to the extent of 40%.

However, the Defendant appealed against the finding of breach of duty, and the Claimant cross appealed against the finding of contributory negligence. Lord Justice McCombe in the Court of Appeal gave the unanimous judgment of the court. He referred to a line of cases, including that of Tomlinson v Congleton BC [2004] 1 AC 46 where the Claimant had suffered serious injuries after diving into a lake owned by a local authority.

What did the Court of Appeal say?

McCombe J found it hard to see how the Claimant’s walking with his bicycle over this bridge, constituted a danger for the purposes of the 1957 Act. The failure to provide guard rails added nothing at all to whatever might be derived as a danger arising from the "state of the premises". One could see that an unfenced bridge or a bridge with low parapets would present more danger of a fall than would a bridge with high guard rails. However there were, of course, many such unprotected bridges up and down the country in all sorts of locations. Ornamental bridges with low walls, together with water features, were likely to be common features of decoration in public gardens. Any structure of this type presented the risk that the user might fall from it.

The probability of a broken neck being suffered in the circumstances of the Claimant was so remote that the risk was minimal. One could not say that there was no risk of injury but it was objectively so small a risk as not to trigger the 1957 Act. Otherwise every injury would suffice because it must imply the existence of some risk.

On the facts of this case, McCombe J could not see what a formal risk 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. He could not see how such a statement would have led to steps being taken that would have prevented or lessened the possibility of the Claimant’s accident occurring. There was no requirement to provide this bridge with the type of side barriers advocated on the Claimant’s 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. The standard had been set too high by the judge below. This appeal would be allowed and the Claimant’s cross appeal would be dismissed.

What does this case mean for Claimants?

This was a truly serious case, and one can see why his claim was brought. Regrettably he lost. However the decision of the Court of Appeal doesn't reflect any change in the law relating to occupiers, or common law negligence. Rather it represents a high water mark, for how far a court will go to impose a duty of care on the owner of land to guard against the risk of accidents.

However the courts can and do find against the occupiers of land, who do not guard against foreseeable risks on their property. BL Claims has a long track record of fighting and winning cases of this kind, where the injuries are both serious and minor.

Malcolm Johnson is a Senior Associate in our London team, specialising in personal injury claims.  If you would like to find out more about the case or to discuss a potential personal injury claim please contact Malcolm.

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About the Author

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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