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.
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.
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.”
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