No doubt many of you will be aware of our case, where a finding of primary liability was made against the London Borough of Sutton for their failure to "warn or prohibit the use of a bridge".
The claim involved Mr Edwards, who decided to cross a small stone arched 150 year old "ornamental" bridge. Whilst crossing the bridge ahead of his wife, Mr Edwards inexplicably simply lost his balance and fell into the stream below sustaining serious injuries. He denied that he was cycling at the time despite contemporaneous records to the contrary from the Park Keeper and the Ambulance Crew who went to Mr Edward's assistance. Nevertheless the Court accepted that Mr Edwards had simply lost his balance. Such a finding should surely have seen this claim dismissed.
However, the Judge found that no risk assessment of the bridge had been undertaken and accordingly found that the risk of an accident occurring (not that one actually had), despite the fact such risk "may not have been great" (as evidenced by the lack of any documented accident in the 150 year history of the structure), was neither identified nor addressed. Further, if an accident had occurred there was a foreseeable risk of catastrophic injury resulting.
The Judge accepted that the law did not impose any duty for a guard rail to have been fitted but, in his view, due to the risk of an accident occurring and the likely severity of any injury as a result, LBS did have a duty to warn users of the low parapet and caution them to take extra care or find a "safer" route. What wording such a sign would have adopted and whether it would have caused Mr. Edwards to choose another route is open to debate.
Despite a reduction of 40% for contributory negligence (for what, was never stated) for a court to find that there was a breach of duty in an occupiers' liability case where the very cause of the incident remains unknown (and pursuant to Glasgow Corporation v Muir [1943] A.0 448 and Lewis v Six Continents Plc. [2005] EWCA Civ 1805 must therefore logically fail), where there have been no prior incidents at the index location despite its existence for over a century and a half, where the "risks" (such as they are) are clearly there to be seen by any individual and where the individual is under no compulsion to take the particular action or route seems to be imposing an unreasonable burden on occupiers and flies contrary to established case law.
In light of the above, the judgment is being appealed and we shall keep you updated with the decision and the ramifications and consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.