Occupiers do not owe a greater duty to visitors than to trespassers

The Court of Appeal has reaffirmed that occupiers owe the same duty to visitors as to trespassers.

In Edwards v London Borough of Sutton [2016] EWCA Civ 1005, Mr Edwards fell off a narrow 19th-century bridge after losing his balance while pushing his bicycle through a park. Why he lost his balance was unclear. The bridge had no guard rails or warnings. There had been no previous accidents on the bridge.

Occupiers’ duties towards visitors and trespassers are laid out in the Occupiers’ Liability Acts 1957 and 1984 respectively. Both Acts state that they regulate duties in respect of “any danger due to the state of the premises or to things done or omitted to be done on them.” However, the Acts describe the scope of those duties in different terms. The duty under the 1957 Act is to “see that the visitor will be reasonably safe”, whereas that under the 1984 Act is to “see that he does not suffer injury…by reason of the danger”. The first-instance judge concluded that this difference required him to focus on the foreseeability of injury to someone in Mr Edwards’ position rather than on the state of the bridge itself. He found that the council was not obliged to fit guard rails to the bridge, but should have displayed warnings.

The Court of Appeal overturned this decision, holding that there was no material distinction between the 1957 and 1984 Acts in any relevant respect. The duty in both cases flowed from the nature of the danger. Occupiers did not have to guard against every foreseeable risk, but only against those which were reasonably likely to happen and which could be guarded against by proportionate remedial works. In this case, the work that would be required to alter a bridge of historic character was out of proportion to the risk. A warning was not required, since it could only have pointed out what would have been obvious to Mr Edwards in any event (namely that pushing his bike across a narrow, unguarded bridge required extra care).

Comment

This was a personal injury claim by Mr Edwards and does not necessarily reflect the likely outcome under health and safety legislation had the regulator become involved. In addition, the result might have been different had it been a child or other vulnerable person who was injured, especially given the emphasis the court placed on the obviousness of the risk. All personal injury cases turn on their own facts and circumstances.