Local authority not liable for serious injury caused by fall from ornamental bridge

The High Court had previously found Sutton Borough Council at fault for not erecting specific warnings about the "dangerously low" footbridge parapet, although the judge had agreed with the council that it would have been disproportionate to require it to erect protective railings. The Court of Appeal disagreed, finding that the potential for injury in this case had been clearly visible and a formal risk assessment would "not have produced anything other than a statement of the obvious".

"That there was some risk of a fall and the potential for injury must have been obvious," said Lord Justice McCombe, giving the judgment of the court. "The approach to the bridge was clear and unobstructed. The width of the bridge and the height of the parapets were also obvious to the eye. The bridge was also over water, with whatever might lie beneath its surface. Any user of the bridge would appreciate the need to take care and any user limiting the width of the bridge's track, by pushing a bicycle to his side, would see the need to take extra care."

"Mr Edwards has suffered injury which can evoke nothing but the most enormous sympathy. However, in line with [previous cases], I find myself in agreement with Mr Warnock's final submission in opening Sutton's appeal that not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises," he said.

"The injuries sustained by the claimant in this case were life changing and can only engender the utmost sympathy," said health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com. "The Court of Appeal, however, is to be applauded for its pragmatic and principle-driven approach to the issues."

"As the court acknowledged, serious accidents can happen through no fault of another. The key point for occupiers, insurers and indeed others with similar regulatory duties is the court's acknowledgement that they are not obligated to provide a guarantee against every possible risk. Assessment of the risk of harm is central, with any response being proportionate and appropriate. Crucially, the seriousness of the outcome is not to be confused with the risk it will occur," he said.

Edwards had claimed that the council had failed to take reasonable care to see that he, as a visitor to the park, was safe in using the bridge for a purpose for which he was permitted to use it, in breach of the 1957 Occupiers' Liability Act. His lawyers argued that the council ought to have provided side protection barriers on the bridge, and had failed to warn visitors to the park of the dangers posed by the bridge.

Sutton argued that the bridge had been in the park for over 100 years without any recorded accident occurring from its use. The height, width and incline of the bridge, as well as its low parapets, were all "obvious features", while the bridge itself was a "pleasing and locally listed ornamental feature". It argued that, in the circumstances, there was no obligation to construct side barriers or to warn potential users of the dangers of the bridge "whose state and construction were obvious".

The Court of Appeal agreed. According to Lord Justice McCombe, there were "two well recognised principles of law" in favour of the arguments presented by the local authority: firstly, the proper treatment in law of the concept of risk; and secondly, that occupiers of land are not "under a duty to protect, or even to warn, against obvious dangers".

On the risk assessment point, the judge said that a formal assessment of risk was unlikely to have produced anything "beyond a statement of the obvious, namely that this was a bridge with low parapets over water; persons not exercising proper care might fall off".

"I do not see how such a statement would have led to steps being taken that would have prevented or lessened the possibility of Mr Edwards' accident occurring," the judge said.

The court also rejected a cross-appeal by Edwards against the High Court judge's finding that there was no need for the council to install side protection barriers.

"Such additions would have altered the character of the bridge significantly and to an extent out of proportion to a remote risk which had never materialised in its known history," the judge said.

Health and safety law expert Kevin Bridges warned that the decision should not be viewed by organisations as "a green light to adopt a move cavalier attitude to safety".

"On the contrary, it is always important to be able to demonstrate that risk of harm has been properly considered and, where appropriate, plans and procedures put in place in response," he said. "There is no substitute for a robust, proactive and regularly reviewed health and safety policy."

"The court in this case has not stated new law. It has merely clarified parties' rights and responsibilities in an area in danger of moving away from its foundations in legal principle, and in so doing imposing overly onerous duties," he said.

"The case is about duties under the common law as opposed to duties under the criminal law, and in particular the 1974 Health and Safety at Work etc Act. However, both involve taking reasonable and proportionate precautions in light of foreseeable and material risks. The Court of Appeal's remarks in respect of what are foreseeable risks and what a proportionate response to those risks would be is therefore relevant when considering potential liability under both the civil law for claims involving personal injury, and the criminal law," he said.