When not every accident (even if it has serious consequences) has to be the fault of another
What happened?
A man was pushing a bicycle over a small ornamental footbridge in a park owned and occupied by a London Borough. It was an old bridge, was humped and had low parapet side. There had been no previous accidents. The man lost his balance and fell over the edge into the water below, hitting rocks. As a result he sustained a serious spinal cord injury.
The man made a claim against the borough council.
Legal Outcome
The trial judge found that there was a breach of the Occupiers Liability Act 1957. He held that there was a foreseeable risk of injury and therefore considered that there was an obligation to warn visitors as to the risks of the low parapets and/or to instruct them to take a different route through the park. Nor had the council carried out a risk assessment. The man was, however, found to be 40% contributory negligent.
The council appealed this decision.
At appeal, the lead judgment found that the first judge had misdirected himself, with a failure in the original decision to recognise 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. There had been no previous accidents of any kind and any risk, if it existed, was remote. The risk of injury could be regarded as minimal rather than serious. Also, there was no duty to warn of obvious risks – the approach to the bridge was clear, and its width and the height of the parapets were obvious.
The Court of Appeal also found that had a risk assessment been carried out, it would have made no difference as it would simply have stated the obvious. The Court found no evidence that the man would have acted any differently had signage or other protection been in place.
The appeal was, therefore, successful.
What can we learn from what happened?
The lawyers Weightmans summarised as follows: ‘This welcome decision reinforces the point 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. As the appeal judge stated when giving the lead judgment “not every accident (even if it has serious consequences) has to be the fault of another; an occupier is not an insurer against injuries sustained on his premises”. Indeed, the 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.
Similarly the case acts as a strong reminder that a failure to carry out a risk assessment, or to identify a potential hazard, will not always result in a finding against an occupier.’
In other words, when there is a claim, there needn’t be blame.
Source of Information
Weightmans