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.


  • 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 44 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

Lincolnshire firm fined after worker fell 7m from forklift truck

| 03rd August 2017 | Personal Injury

Lincolnshire firm fined after worker fell 7m from forklift truck A worker suffered serious injuries when he fell while carrying out maintenance work at a Lincolnshire seafood processing factory, a jury was told. Virginius Kurselis was standing inside a box held up by a forklift truck when he fell seven metres while painting at the Fishgate Ltd factory at Brookenby near Market Rasen. Mr Kurselis spent four weeks on hospital and underwent two operations as a result of injuries he received as a result of the fall in July 2013. His left leg was shattered and his right foot was broken. He also suffered a cracked pelvis and a dislocated right arm. Robert Stevenson, prosecuting, said that Mr Kurselis was employed as a packer but was asked to paint gutterings and down pipes in preparation for a visit from a customer. Mr Kurselis initially used a ladder but changed and stood in a box which was lifted by a forklift truck to the required height. Mr Stevenson said: “Unfortunately the box tipped forward and Mr Kurselis fell. “Mr Kurselis was employed as a factory operative. His role was as a packer but on the day he was asked to do some painting. “The company was expecting a visit from a new customer and wanted the building to look more presentable. “He wasn’t given any training as to how to safely carry out that work. “There was an absence of any instruction and there was an absence of any supervision.” Fishgate Ltd of Brookenby Business Park, Binbrook, denied a charge of failing to discharge a duty of health, safety and welfare of an employee. The firm was convicted by a jury following a short trial and fined £100,000 and ordered to pay £19,032 prosecution costs The company is currently in administration and was not represented in court. Recorder Paul Mann QC, passing sentence, said: “Mr Kursilis was given no advice as to how to do this safely and no equipment apart from a tin of paint and a brush. “This was an accident waiting to happen. “He was very badly injured. He could so easily have been killed.”   Lincolnshire Reporter...

Worker loses fingers fixing a gate

| 28th July 2017 | Personal Injury

Company fined £8,000 after worker loses fingers fixing a gate A company has been fined £8,000 with cost of £2,080 following a Health and Safety Executive (HSE) investigation into the loss of an employee’s two middles fingers. After LKAB Minerals (Richmond) Ltd’s main entrance gate broke, they assigned the worker to fix it, during which both his fingers were severed. The HSE found the company failed to: • identify the risks of the worker doing this task • devise safety measures to ensure a safe way of working • provide information, instruction and training regarding the task • ensure the workers has the correct supervision and monitoring LKAB Minerals pleaded guilty to breaching Section 2 (1) of the Health and Safety at Work Act 1974 at the Sheffield Magistrates’ Court. LexisNexis and LNB News...

BT to pay damages to worker electrocuted by power line

| 10th July 2017 | Personal Injury

BT to pay damages to worker electrocuted by power line The claimant, cherry picker operator Ian Milroy, was injured by a ‘very high voltage electrocution’ while working as repair hoist operator for BT in August 2009. He and a colleague were checking a fault on a carrier pole, elevated in a cherry picker mounted on the back of a transit van. While moving the vehicle to allow a horse-rider to pass, Mr Milroy came into contact with the high-voltage power line. He suffered a cardiac arrest and a seizure, along with severe burns, fractures to his back and a brain injury. He has no memory of the accident, and has since experienced anxiety and depression. His lawyers sued BT on his behalf, but the company denied blame for the accident. At a hearing in February 2015, Mr Justice William Davis found BT two-thirds responsible for the accident, and ruled that the training given to Mr Milroy had not been adequate. On 26 June 2017, Judge David Pittaway QC approved a final settlement of Mr Milroy’s claim. The amount of the payment was confidential, but is a substantial sum given the extent of his injuries. Lexis Nexis and LNB News...

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...