Warnings for obvious risks are not required

ENGLISH HERITAGE v TAYLOR [2016] EWCA Civ 448

Under the Occupiers' Liability Act 1957, adult visitors do not require warnings of obvious risks, except where they do not have a genuine and informed choice.

The Facts

The Appellant, English Heritage, appealed against a County Court ruling that they were liable for the injuries the Respondent had sustained whilst visiting Carisbrooke Castle.

The Respondent, Taylor, had decided to walk down an informal path where he lost his footing and fell over a wall into a dry moat, sustaining a serious head injury.

A central issue was whether anyone contemplating going down the slope to the informal pathway could have seen that there was a sheer drop into the moat, such that there was an obvious danger.

At first instance the court held that English Heritage had breached their common law duty of care under section 2 of the Occupiers' Liability Act 1957, by failing to provide warning signs to visitors and negligently caused Taylor to suffer serious injury. The court also held that Taylor had contributed to his injuries by 50%.

The Decision

The court dismissed English Heritage's appeal and held:

1. The Appellant had recognised that there was a danger to visitors who were walking along the path as they had ensured warnings signs were in place. It would not have been disproportionate or unreasonable to place extra signs in strategic places.
2. A 50/50 liability apportionment was reasonable. When determining contributory negligence the court will conduct a balancing exercise of the degree of fault and causation of injury.
3. When a case concerns the duty of care under the Occupiers' Liability Act 1957, adult visitors do not require warnings of obvious risks except where they do not have a genuine and informed choice.

In this case, falling 12 feet down a sheer drop into a dry moat is an obvious risk of serious injury; however an individual would be unaware of the drop due to the landscape of the castle. Accordingly, a sign warning of the sheer drop should have been in place.

What can we learn?

• The case reiterates the principle that occupiers have no obligation to warn visitors about obvious risks; applicable to both public attractions and domestic property.
• It was highly relevant that the common duty of care was to take such care 'as in all the circumstances is reasonable' to see that the visitor is 'reasonably' safe in using the premises for the purpose for which they are invited or permitted by the occupier. The court is, therefore, required to consider all the circumstances, including how obvious the danger is and, in an appropriate case, 'aesthetic' matters.
• Defendants should seek to argue that a danger was an obvious one and therefore no warning was required. The Master of the Rolls, Lord Dyson, stated "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". However, the steps need be no more than reasonable steps.
• There was no basis for the Court of Appeal to interfere with the first instance decision that the blind sheer drop was not an obvious danger. A duty to guard against obvious risks only arises in cases where there is no genuine and informed choice.
• However, the court emphasised that this finding should not be interpreted as requiring occupiers to place warning signs all over sensitive historic sites; only reasonable steps should be taken.
• Public organisations who argue that it is not in the public interest to place unsightly warning signs on sensitive historic sites and that findings in favour of claimants would fuel the 'compensation culture' are unlikely to succeed.