Christopher Edwards v London Borough of Sutton
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Lewison,Lady Justice Arden DBE |
| Judgment Date | 12 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1005 |
| Docket Number | Case No: B3/2014/4296 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2016 |
[2016] EWCA Civ 1005
Lady Justice Arden
Lord Justice Lewison
Lord Justice McCombe
Case No: B3/2014/4296
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Gore QC,
sitting as a Judge of the High Court)
HQ13X01735
Royal Courts of Justice
Strand, London, WC2A 2LL
Gerard McDermott QC and Nathan Tavares (instructed by Stewarts Law LLP) for the Claimant/Appellant
Andrew Warnock QC and Jack Harding (instructed by Clyde & Co. LLP) for the Defendant/Appellant
Hearing dates: 20 th & 21 st July 2016
Judgment Approved
(A) Introduction
This is an appeal from the judgment and order of 8 December 2014 of Judge Gore QC (sitting as a Judge of the High Court) whereby he ordered judgment to be entered for the claimant (Mr Christopher Edwards — hereafter "Mr Edwards") for 60% of such damages as were to be assessed in his favour, in respect of personal injury sustained by him in an accident in a public park under the control of the defendant (London Borough of Sutton — hereafter "Sutton").
The judge found Sutton to be primarily liable for breach of the common duty of care arising under the Occupiers' Liability Act 1957 in respect of serious injury sustained by Mr Edwards when, on 10 September 2010, he fell from a small ornamental footbridge in the park, apparently onto a rock or rocks in the water below. The judge found Mr Edwards to have been contributorily negligent in the accident to the extent of 40%.
Permission to appeal was granted to Sutton by order of 30 March 2015 of Tomlinson LJ. Sutton argues that the judge was wrong to find it liable at all to Mr Edwards for the injury sustained and asks this court to set aside the judgment and to enter judgment in its favour. By order of 11 June 2015, Tomlinson LJ gave Mr Edwards permission to appeal against the judge's finding that Sutton was under no duty to provide better side protection for the bridge and against the finding of contributory negligence that the judge made against him.
(B) Background Facts
The judge gave a fuller review of the evidence that he heard than appears to me to be necessary for the purposes of the appeal and cross-appeal. His judgment is available publicly with the neutral citation [2014] EWHC 4378 (QB). The following summary suffices for present purposes.
On the date of the accident, Mr Edwards was 64 years old, shortly to be 65. He and his wife, Mrs Elizabeth Edwards, had decided to take up cycling as a form of exercise. Mr Edwards had been a fairly keen cyclist in earlier years, but had been less active in that respect more recently. He and Mrs Edwards had been more inclined to walk for their exercise. However, in 2007 Mr Edwards had had a hip replacement operation and he found lengthy spells of walking uncomfortable. He found cycling less difficult. Mrs Edwards had done little cycling since she was a young girl and was somewhat apprehensive about taking it up again, particularly on public roads. The couple had acquired new bicycles and Mrs Edwards had booked herself onto a cycling proficiency course which was to take place in the near future. They had decided to make an initial practice ride, largely for Mrs Edwards' benefit, around Beddington Park in Sutton, some two or three miles from their home. The weather on the day was described in evidence as "dry, cold [and] crisp". The park has the benefit of a circular route amenable to cyclists and to pedestrians and also a separate walkway for pedestrians only. The ornamental bridge in question in the proceedings is situated on the walkway.
Mr and Mrs Edwards had completed some three circuits of the park (lasting about 20 minutes each) when they decided to stop cycling and to walk back to Mrs Edwards' van in which she had arrived (with her cycle) at the park and which she had parked in the adjoining public car park; Mr Edwards had cycled to the park. The idea was that they would walk their bikes back to the van. Mr Edwards would help his wife to load her machine back into the vehicle; she would then drive to their home in Mitcham and Mr Edwards would cycle back. They dismounted their bikes and proceeded along the walkway towards the car park. After a short spell seated on one of the park benches at the park's lakeside, they continued on their way on the pedestrian walkway, pushing their cycles. Mr Edwards was in front and Mrs Edwards followed a short distance behind.
Their route along the pedestrian walkway took them over the bridge in question. The judge found that the incident occurred at a time shortly before 1 p.m. Mr Edwards described what then happened in his witness statement in these terms:
"16. Liz and I were walking in single file pushing our bikes across the bridge. I was in front, with Liz about 5 meters [sic] behind. A little way before we reached the bridge, I turned to ask Liz if she was ok, then I carried on. I did not have my helmet on at this point. By the time I reached the bridge I was facing forward once again, and I was pushing my bike on my left hand side using two hands, so that it was between me and the side of the bridge.
17. All of a sudden I was aware of the bike pulling away from me, and pulling me off balance. I tried to keep my balance, but I couldn't, and fell over the side of the bridge onto the large rocks beneath me. I do not know what I hit first, I remember two bangs as I hit the rocks, I do not know if I flipped over. My bike also followed me and fell into the water, landing upside down, resting on the saddle and handlebars.
18. I hit my head, neck, shoulder and my back, I cannot recall in which order. I landed with my head face down in the water between the rocks. I could not move and my head kept dropping under water level. I do not know whether I lost consciousness but I was very cold and winded. I think the shock of the fall may have affected my memory."
The judge referred to certain answers given by Mr Edwards in his oral evidence as follows:
"12. In his oral testimony when cross-examined by Mr. Warnock, he told me as follows: "I completely fell off the bridge and I don't think I was paying attention to where I was falling and it happened so quickly." He was asked whether he remembered where his bicycle landed and he told me that he did not have a clue and he had no idea and when asked in what direction the bike pulled him, he said it was to his left. He said that at the time of this approach he was facing ahead with two hands on the bicycle and he was asked: "Can you help with why the bike pulled away to your left?" and his answer was that he had no idea. He was asked whether he was taking care crossing the bridge and he rather hesitantly replied: "Well, yes". He was asked whether he had seen the bridge on its approach and seen that it was narrow and had low walls and his answer was, "Yes, I mean, possibly did, yes". He was asked whether he was aware or had identified what was in the stream and he said: "Well, I wasn't paying that much attention to the stream and the rocks, you know. I was more aware of crossing the bridge safely". Then he was asked: "But you cannot say what caused the bike to pull away" and his answer was: "No". He confirmed that it was the bike that was pulling him off balance.
13. He was asked whether anything had happened or caught him in some way such that he tripped and he said: "I am not aware that the bike caught anything or done anything or that I tripped. I just know that the bike went towards the edge of the bridge and that's where I went over". He said that it was the bike that pulled him over, because he lost his balance and that in doing so he was facing forward and did not turn around at the time leading up to this event.
Mrs Edwards described the matter in this way in her statement:
"15. The bridge is quite narrow and so Chris and I were walking in single file with Chris in front and me behind… Chris was not wearing his helmet. We weren't rushing and we were chatting, taking our time. I was feeling very pleased that it had all gone so well and was looking forward to coming out again.
16. Shortly before the path joined the bridge, Chris asked me if I was okay. I know that he had been worried about how I would manage. I told him that I was absolutely fine and Chris turned round so that he was facing forwards once again before walking onto the bridge.
17. Several moments later, as he was on the bridge, I looked up and saw Chris falling. He started to move his arms in an attempt to regain his balance and for a moment it looked as though it was going to work but then his balance tipped the other way and over he went. His bike also went over the side of the bridge."
The judge recorded some further oral evidence from Mrs Edwards as follows:
"19. She too was cross-examined by Mr. Warnock and in cross-examination she told me that he was losing his balance towards his left. Asked whether it happened at the time that he turned round to ask her if she was all right, she said no. Asked: "So as far as you were concerned he was just walking straight ahead and the next thing you saw him losing his balance", she replied: "Yes". "Was he on the bridge at that point?" Her answer was that he was nearly up before the middle where he fell, before the middle; that is, the middle of the bridge. When asked the question: "Up towards the highest part of the bridge?" she said "Yes". When asked whether he was on his bike when he fell she said: "No"."
There was no other "eye-witness" evidence to the accident.
There was an issue before the judge as to whether Mr Edwards had been riding his bicycle or had been pushing it on foot when the accident occurred. The judge decided that Mr Edwards had been on foot, pushing his...
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