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 EWCA Civ 448, 11 May 2016, Lord Dyson MR
The claimant suffered a serious head injury when he fell down a sheer drop at one of the defendant’s sites. The central issue was whether the defendant had breached its common duty of care under s2 of the Occupiers Liability Act 1957 ('OLA 1957') by failing to have a warning sign or whether it was an obvious danger for which adults required no warning. At first instance the recorder held that the defendant had breached its duty of care by failing to have a warning sign but also made a finding of 50% contributory negligence against the claimant. This decision was appealed by the defendant on the grounds that the recorder had erred in his approach and also that the finding was contrary to the public interest. This appeal was dismissed.
On 13 April 2011 the claimant, who was nearly sixty at the time, suffered a serious head injury following a fall down a sheer drop at Carisbrooke Castle on the Isle of Wight which was managed and occupied by the defendant.
The claimant was walking from a raised platform down a steep informal path in the direction of a grass pathway when he lost his footing and was propelled across the grass pathway and over the sheer face of a bastion wall into the dry moat some ten feet below.
The central issue was whether anyone on the platform who was contemplating going down the steep slope to the grass pathway could have seen that there was a sheer drop from the pathway into the moat such that going down the steep slope was an obvious danger from which there was no reasonable need for the defendant to protect its visitors.
At first instance, the Recorder who visited the site held that the defendant had breached its duty under s2 of OLA 1957 in failing to provide signs warning of the sheer drop which gave rise to the accident. This was based on the fact that the defendant would have been aware that people were using the informal path as it was well worn and also that whilst both the grass pathway and dry moat could be seen from the raised platform, the sheer drop could not and it would therefore not be an obvious danger. A finding of 50% contributory negligence was, however, also made.This decision was appealed by the defendant on the grounds that firstly, the Recorder should not have found that the sheer drop would not have been an obvious danger to an adult visitor standing on the platform. Secondly, that the Recorder had been wrong to find that the defendant’s breach of duty had caused the claimant to suffer the accident. Thirdly, that the finding of 50% contributory negligence was too little and finally, that the Recorder’s decision was contrary to the public interest as it would lead to public organisations adopting a defensive approach and unsightly warning signs in historic sites.
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On appeal it was held that firstly, the Recorder, who had visited the site itself, was entitled to find as a fact that the sheer drop would not be an obvious danger to somebody standing on the raised platform. Therefore, the sheer drop was not an obvious danger and the defendant ought to have taken reasonable steps to protect visitors against it.
Secondly, it was held that on causation the risk the claimant had taken in going down the slope in an upright position was that he would fall on a steep grass slope which would have been unlikely to cause a serious head injury and was of a different magnitude to a sheer drop of 12 feet. A sign warning of the existence of the drop would have likely influenced the behaviour of the claimant and the Recorder was therefore entitled to find that causation was established on the balance of probabilities.
Thirdly, it was held that it was well established that an appellate court would not interfere with a lower courts apportionment of contributory negligence as per Clare v Perry  and that for the same reasons given for not overturning the Recorder’s findings on causation the apportionment of negligence would be upheld.
Finally, it was held that the in terrorem arguments of public interest were not accepted as this decision was based on a straightforward application of the principle that adult visitors only required warnings of obvious risks when they did not have a genuine and informed choice. Therefore, there was no basis for interfering with the recorders decision that the sheer drop was not an obvious danger.
Sandra De Souza and Tom Dickinson, Anthony Gold Solicitors