Occupier's liability – Visitor. The Court of Appeal Civil Division dismissed the defendant's appeal against a finding of a recorder that the claimant's accident had been caused by the defendant's breach of duty of care and/or breach of s 2 of the Occupiers Liability Act 1957.

Catchwords

  • Occupier's liability – Visitor – Permission to be on premises – Claimant visiting heritage site and suffering serious injury – Claimant bringing successful action against defendant – Defendant appealing – Whether recorder erring in finding defendant being in breach of statutory duty – Whether recorder erring in finding defendant being in breach of duty of care – Whether appeal should be allowed – Occupiers Liability Act 1957.

The judgment is available at: [2016] EWCA Civ 448

Carisbrooke Castle on the Isle of Wight (the Castle) included an outer bastion with designated walks which was open to the public. On one of the walks there was an elevated firing platform where two cannons were sited (the platform). Directly below the platform (at the base of a steep slope) was a grass pathway (the grass pathway). On the side of the grass pathway away from and below the platform there was a dry moat. The slope from the platform down to the grass pathway was very steep. There was also an informal path down the steep slope from the platform to the grass pathway. In 2011, the claimant was visiting the Castle when he fell and suffered a serious head injury. On that day, the claimant, his wife and their grandchildren were on the platform. The children were playing on the cannons. The claimant had left the others and had gone down the steep informal path in the direction of the grass pathway. Although he had no recollection of what happened next, it was clear that he had to have attempted to walk in an upright position down the informal path and must had lost his footing and been propelled across the grass pathway and over the sheer face of the bastion wall into the moat, which was a 12 foot drop. The Castle was managed and occupied by the defendant. The claimant brought a claim contending that the accident had been caused by the defendant's negligence and/or breach of s 2 of the Occupiers Liability Act 1957. The recorder, who had photographs of the area and had also made a site visit, found that the claimant's injury had indeed been caused by the defendant's breach of s 2 of the Act in failing to warn visitors by means of a sign of the danger which had given rise to the accident. The judge found that the claimant was 50% to blame. The defendant appealed.

The defendant submitted that the recorder's decision with regard to s 2 of the Act had been wrong because: (i) he should not have found that the sheer drop from the grass pathway into the moat would not have been obvious to an adult visitor standing on the platform; (ii) he had failed to address the question of whether the drop was an obvious danger against which there was no need for the defendant to protect visitors; and (iii) there had been inconsistencies in the judgment. He further submitted that the recorder had been wrong to have found that the defendant's breach of duty had caused the claimant to suffer the accident. Finally he challenged the conclusion that the claimant was 50% to blame on the contributory negligence issue.

The appeal would be dismissed.

(1) Where a finding of fact had been based on an interpretation of photographs and where an appellate court was in the same position as the trial judge to interpret the photographs, it was open to the appellate court to reverse the finding of fact (see [16] of the judgment).

In the instant case the recorder had not based his finding of fact solely, or even principally, on the photographs, he had undertaken a site visit as well. The recorder had been entitled to find, as a fact, 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. The defendant's attempt to persuade the court to reverse the Recorder's finding of fact was hopeless. Although it was true that the recorder had not addressed the question whether the drop was an obvious danger, that had formed no part of the defendant's case that, if the sheer drop from the grass pathway to the moat could not be seen, it was at least obvious that there was a considerable drop which represented an obvious danger. Although there was an inconsistency in the recorder's reasoning, that had not undermined his conclusion in relation to the warning signs. Each of the three reasons would be rejected for reversing the recorder's decision that the defendant was in breach of s 2 of the Act in having failed to provide a sign on the platform or on the grass pathway. The sheer drop had not been an obvious danger and the defendant ought to have taken reasonable steps to protect visitors such as the claimant against it (see [16], [17], [20], [21] the judgment).

(2) The recorder had been entitled to find that causation had been established on the balance of probabilities. The risk that the claimant had taken in going down the slope in an upright position was that he would lose his balance and fall over on a steep grassy slope. It would have been most unlikely to have caused him to suffer a serious head injury. The risk of falling 12 feet down a sheer drop was of a different order of magnitude. It involved a real and obvious risk of serious injury. There was a clear difference between (i) simply going down a steep grass bank on one's feet and (ii) going down a steep grass bank when one knew that there was a 12 feet sheer drop at the bottom of it. A sign warning of the existence of the sheer drop would have been likely to influence the behaviour of most sensible individuals (see [24] of the judgment).

(3) The recorder had had to balance the degree of fault and causation of injury. 50/50 was a reasonable apportionment. The defendant's fault was of long standing, whereas the claimant's had been momentary (see [27] of the judgment).

Per curiam: [the defendant] contended that the recorder's finding against the defendant is extremely important. He says that, as with many public organisations which have large areas of land and premises open to the public, it has acted (as an occupier) in a way consistent with the principle that adult visitors do not require warnings of obvious risks except in cases where they do not have a genuine and informed choice. He also says that, if we dismiss this appeal, organisations like English Heritage will be under pressure to adopt an unduly defensive approach to their guardianship of historic sites which are part of our precious heritage and this will lead to an unwelcome proliferation of unsightly warning signs. This is contrary to the public interest. The courts should be astute to avoid such a consequence. Moreover, a decision in favour of the claimant in the present case will fuel the popular conception that this country is in the grip of a compensation culture. I do not accept these in terrorem arguments. If an occupier is in doubt as to whether a danger is obvious, 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. That is why 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. They are required to do no more than take reasonable steps (per Lord Dyson at [28], [29], [30] of the judgment).

Tara Psaila Barrister.

Lexis Nexis

Subscribe to Updates
Subscribe to:
Like   Back to Top   Seen 43 times   Liked 0 times

Subscribe to Updates

If you enjoyed this, why not subscribe to free email updates ?

Subscribe to Blog updates

Enter your email address to be notified of new posts:

Subscribe to:

Alternatively, you can subscribe via RSS

‹ Return to Blog

We never share or sell your email address to anyone.

I've already subscribed / don't show me this again

Recent Posts

Worker's Hand Crushed At Work

| 12th May 2017 | Blogging

Steel firm fined £217,000 after worker’s hand is crushed Cardiff-based steel manufacturing company Rom Ltd has pleaded guilty to breaching safety regulations after a worker suffered crush injuries to his hand. A Health and Safety Executive investigation found the company failed to identify the risks associated with workers manually operating a machine, and that steps were not taken to ensure the machine was correctly guarded. The worker was removing leftover steel from a machine called the Koch Straightener when he trapped his hand between the rotating rollers inside the machine. He suffered serious crush injuries to his hand and lost the top of his right index finger. Rom Ltd pleaded guilty to breaching the Provision and Use of Work Equipment Regulations 1998, SI 1998/2306, r 11, and has been fined £200,000 and ordered to pay costs of £17,200.63.   LNB News and Lexisnexis...

Holiday Illness Claims Solicitors

| 03rd April 2017 | Blogging

@page { margin: 2cm } P { margin-bottom: 0.21cm } Holiday Illness Compensation Claims You’ve packed your suitcase, loaded up the car and are about to board the plane after months of anticipation, waiting for that week or two that you can finally relax. The plane finally lands and as you exit you feel the warmth of the sun on your skin and at last you know you are on holiday. The stunning sun and glorious heat provides you with a glimpse of what the next two weeks of your life will be like… For some people those following days or weeks are far from that vision that they anticipated as they stepped from the plane. Instead of laying in the sun, swimming in the sea and enjoying cocktails by the pool, many find themselves laid in their hotel beds suffering from any number of viruses or stomach upsets that end up ruining both their holiday and the holidays of those with them. Holiday Sickness Claims Guide Developing such illnesses on holiday is fairly common and quite often more likely to happen on holiday than at home. There are reasons for this; firstly, it is believed that during your day to day life your body is constantly producing stress hormones that help you fight off infections. The theory is that as you relax the level of these stress hormones in your body drops, making you more susceptible to illness. The second reason is that in your home environment your body has adapted and become immune to certain bacteria and viruses, however, when you visit a foreign country your body is exposed to new bacteria and viruses. What illnesses might I contract while on holiday? Common claims for holiday sickness are: Food poisoningSalmonellaStaphylococcus aureusE. coliCampylobacterShigella Clostridium botulinum bacteriaLegionnaire’s diseaseHow has the hotel caused my illness? There are numerous things that the hotel can do that will increase the risk of you getting sick whilst you’re on holiday including: Using non-filtered water to make ice cubesLegionnaires disease caused by the ventilation systemFood being left out in heatPoor kitchen hygiene practicesUse of unpasteurised milk and eggsInsects contaminating foodReheating foodHoliday Sickness Claims Procedure Are there any time limits on making a claim? Yes, time limits do apply. If you are making a claim against a UK tour operator or travel agent then you have three years from the date of the holiday to begin legal proceedings. If the illness was caused from being on a boat or plane (e.g a cruise) then that time limit decreases to two years. Package Holiday Sickness Claims If your holiday wasn’t a package holiday then it is still possible to claim against the hotel, but the time limit on making a claim will depend on the country and their local laws. Do I have a claim? Not all illnesses suffered on holiday are the fault of your hotel or the tour operator as there are specific holiday sickness claims criteria to be applied, but whatever your situation I can look at your claim and determine whether I can take it further. It is important to speak to specialist holiday sickness claims solicitors about your potential on holiday illness claims. I work on a no-win no-fee basis and you can contact me on 01507 609027 for a free, no obligation consultation....

Asbestos Mesothelioma Compensation

| 03rd April 2017 | Blogging

@page { margin: 2cm } P { margin-bottom: 0.21cm } H1 { margin-bottom: 0.21cm } H1.western { font-family: "Times New Roman", serif } H1.cjk { font-family: "SimSun" } H1.ctl { font-family: "Arial" } £110,000 damages for family of worker killed by asbestos-related cancer   The deceased man, Anthony Justice, had been employed by Universal Asbestos Manufacturing Company Ltd, based in Watford, and had worked on renovation projects in Scotland in 1967 and 1968. He had been employed, for three months, as a pipe lagger’s mate in boiler rooms. He emptied bags of asbestos into a spraying machine and swept up asbestos dust at the end of each day. He was treated at Watford General Hospital in 2013 due to becoming increasingly breathless and only able to walk about 15 yards. His health continued to deteriorate and, in May 2015, he was diagnosed with mesothelioma. He died in July 2015. On 20 March 2017 at the High Court, Judge Sir Robert Francis QC upheld a claim for damages against Mr Justice’s former employer by his daughter, Debbie Smith. Sir Robert said he had ‘no doubt that Mr Justice was exposed to asbestos at some point during his life’. Mr Justice had given an account of his working life in a statement before he died, and Ms Smith was a ‘credible witness’. The judge said Universal Asbestos was ‘a well-known employer’ in the Watford area and he was satisfied that Mr Justice had worked for the firm. He also accepted that he had worked as a lagger’s mate on the dates claimed and had ‘inevitably’ been exposed to asbestos. Universal Asbestos and its successors are no longer in business, so the £110,000 compensation will be paid by the FSCS. LNB News and Lexis Nexis...

Holiday Sickness Compensation Claim

| 03rd April 2017 | Blogging

@page { margin: 2cm } P { margin-bottom: 0.21cm } H1 { margin-bottom: 0.21cm } H1.western { font-family: "Times New Roman", serif } H1.cjk { font-family: "SimSun" } H1.ctl { font-family: "Arial" } Wallace-Challoner v Thomas Cook The claimant who was aged six at the date of the onset of illness and is now aged 10, suffered a gastrointestinal illness, including symptoms of sickness, fever, diarrhoea and abdominal pain following a family holiday to Egypt in September 2012. On 24 September 2012 the claimant developed an illness with symptoms of abdominal pain, diarrhoea and nausea. As his symptoms were severe he was treated by his parents with liquid medication and tablets. He did not see a doctor, and made a full recovery from the infection on 5 October 2012. In totality, the claimant's symptoms persisted from 24 September until 5 October 2012. There had been no recurrence of symptoms and none were expected in the future. He was not absent from school because of the symptoms. The medical expert advised that he developed infective gastroenteritis while on holiday in Egypt. It was likely that this resulted from ingesting water from the hotel swimming pool or food or drink which had become contaminated as a result of poor standards of hygiene at the hotel. ...