English Heritage v Taylor: a common sense approach to occupiers’ liability

All too often we see the headlines of “health and safety gone mad”, suggesting that businesses and owners of premises are required to jump through endless hoops in their quest to avoid being sued for other people’s mishaps.  In fact, this is far from a realistic interpretation of the state of our legal responsibilities as the recent decision in English Heritage v Taylor demonstrates.

The claimant, Mr Taylor was visiting Carisbrooke Castle on the Isle of Wight.  The castle had an elevated cannon firing platform, from which ran a steep informal pathway down a grassy bank.  On the other side of the grassy bank, beyond a bastion wall, was a 12 foot sheer drop into a dry moat.  Mr Taylor set off down the pathway, lost his footing and fell into the moat sustaining injury.

A central issue of the case was whether anyone contemplating going down the steep slope could have seen when setting off that there was a sheer drop into the moat.  The Judge at the time of trial visited the site and found that English Heritage were in breach of section 2 of the Occupiers’ Liability Act 1957 in that they had failed to warn visitors, by means of a sign, of the danger which caused the accident.  Mr Taylor for his part, was held to be 50% to blame.

English Heritage’s insurers appealed the decision, saying that if this were upheld, then all similar public organisations would have to adopt an unduly defensive approach on their historic sites, leading to an unwelcome proliferation of ugly warning signs that was contrary to the public interest.

The Court of Appeal dismissed the appeal.  The Court held that the sheer drop was not an obvious danger.  The risk Mr Taylor took was that he may have fallen on the grassy slope, which was unlikely to cause him injury.  The risk of falling 12 feet down a sheer drop was of a different magnitude and one that English Heritage should have taken reasonable steps to warn of and protect against.  The 50/50 apportionment was upheld.

In making its decision, the Court of Appeal highlighted that this was a straightforward application of the principle established by the House of Lords in Tomlinson v Congleton BC that adult visitors did not require warnings of obvious risks, but risks where they did not have a genuine and informed choice.  In all cases the Court should consider all the circumstances, including how obvious the danger was and in an appropriate case, aesthetic matters.

In terms of what was required from an occupier, the steps needed to be no more than reasonable steps.  The insurers were found liable on a very specific basis, namely the failure to provide a sign warning of the sheer drop which was not obvious.  As such, the decision should not be interpreted as requiring organisations like English Heritage to fill their historic sites with warning signs.  The popular press can rest easy.

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