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Occupiers’ liability: a “proliferation of unsightly warning signs” for historic sites?

English Heritage v Taylor
Court of Appeal
11 May 2016

On 13 April 2011, whilst visiting Carisbrooke Castle on the Isle of Wight, a 60 year old grandfather fell into a dry moat and suffered a serious head injury. In this judgment the Court of Appeal had to consider whether the danger faced by the claimant resulting in his fall was an obvious one. Some of the media coverage following the judgment predictably suggested that we do not need to be warned not to fall into a moat and that “historic sites could be littered with ‘irritating’ warning signs”* In this article, David Woolley examines whether this case marks the opening of the floodgates or is a straightforward application of well-established principle and Paul Donnelly considers the implications for the public sector.

Background

The fortifications of Carisbrooke Castle include an outer bastion comprising an outer bastion wall, a moat and angled corner bastions. On the day of the accident, the claimant who was with his wife and grandchildren was standing on a platform with two cannons on it. The platform is flat and stands at least 25 feet above the outer bastion. A steep slope leads down from the platform to a grass pathway which runs along the top of the outer bastion wall. Beyond the grass pathway is a drop of at least 10 feet into a dry moat.

An informal path had developed down the slope to the grass pathway, and it is understood that the claimant lost his footing when he attempted to walk down the informal path. He was propelled across the grass pathway and over the sheer face of the bastion wall into the moat.

At first instance the Recorder found the defendant to be in breach of s.2 of the Occupiers’ Liability Act 1957, and that the breach caused the claimant to suffer the accident. However he also found that the claimant was 50% to blame.

The defendant appealed: the central question was whether anyone on the platform who was contemplating descending the steep slope to the grass pathway could have seen that there was a sheer drop from the pathway into the moat, such that going down the steep slope was an obvious danger from which there was no reasonable need for the defendant to protect its visitors.  

The law

Section 2(2) of the Occupiers’ Liability Act 1957 provides:

“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.”

In the House of Lords judgment in Tomlinson v Congleton Borough Council (2003) Lord Hoffmann said (para 46) that there is no legal duty on occupiers of land to safeguard irresponsible visitors against dangers which are “perfectly obvious”.

It is worth highlighting that in this case, Master of the Rolls, Lord Dyson, highlighted the following passage from Kennedy LJ in Staples v West Dorset District Council (1995):

“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 warning the visitor in question would be 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…; 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.”

As Lord Dyson put it in this case:

“A duty to protect against obvious risks exists only in cases where there is no genuine and informed choice.”

Court of Appeal findings

The Court of Appeal unanimously agreed with the Recorder and upheld the first instance findings. The sheer drop from the grass pathway into the moat was not visible from the platform and was therefore not an obvious danger. In terms of the steps required to protect visitors such as the claimant Lord Dyson was at pains to highlight that “no more than reasonable steps” were required. He further emphasised:

“…the decision in this case should not be interpreted as requiring occupiers like English Heritage to place unsightly warning signs in prominent positions all over sensitive historic sites.”

Acknowledging that the question of whether a danger is obvious may not always be easy to resolve, Lord Dyson suggested that “if an occupier is in doubt, it may be well advised to take reasonable measures to reduce or eliminate the danger. But the steps need be no more than reasonable steps.” 

Comment

The Court of Appeal has in this judgment rejected the connotation that this decision opens the floodgates. It did not welcome the suggestion by leading counsel for English Heritage that a finding in the claimant’s favour would lead to “an unwelcome proliferation of unsightly warning signs” across this country’s most venerated sites. We do not therefore see the judgment of the Court of Appeal as extending the reach of the Occupiers’ Liability Act 1957. It merely agreed with the finding of the first instance judge that the sheer drop from the pathway into the moat was not obvious and was therefore a danger about which English Heritage had a reasonable duty to warn it visitors. This was a fact sensitive case.

That said, it provides a useful opportunity for landowners or those responsible for land frequented by the public to examine their policies and procedures. The judgment highlights:

  • The need to identify and recognise risks, and take reasonable and well thought out measures to lower risks or record why they have reached a decision not to take any action;

  • The need to adequately document the reasons behind any decisions made, through for example comprehensive risk assessments;

  • The need to plan footpaths and walkways, and where there are clearly identifiable informal footpaths either the landowner needs to actively prohibit the use of the walkway (where it is legally able to) or it needs to treat it as designated traffic route and assess the risks posed by that traffic route and its surroundings accordingly.

Whilst the judgment does not currently represent any great change in the law, it is understood that English Heritage was considering seeking permission to appeal to the Supreme Court. It will be interesting to see how this develops. If the Supreme Court were to grant permission to appeal, success on appeal would involve a reversal of the finding of fact by the Recorder:

Whilst the judgment does not currently represent any great change in the law, it is understood that English Heritage was considering seeking permission to appeal to the Supreme Court. It will be interesting to see how this develops. If the Supreme Court were to grant permission to appeal, success on appeal would involve a reversal of the finding of fact by the Recorder:

“…that it would not have been obvious to a person standing on the platform that the sheer bastion wall that was visible to such a person continued at a right angle below the grass pathway.”

And it is worth noting that the Court of Appeal categorised leading counsel’s attempt to persuade them in this regard as “hopeless”.

Contact

For further information, please contact David Woolley, Associate on 0161 604 1638 or Paul Donnelly Senior Associate on 0121 200 0439

* Telegraph - 12 May 2016

By David Woolley and Paul Donnelly

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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