English Heritage v Taylor
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice McFarlane,Lord Justice Beatson |
| Judgment Date | 11 May 2016 |
| Neutral Citation | [2016] EWCA Civ 448 |
| Docket Number | Case No: B3/2015/0409 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 2016 |
[2016] EWCA Civ 448
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWPORT (ISLE OF WIGHT) COUNTY COURT
MR RECORDER BLUNT QC
3YQ20400
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice McFarlane
and
Lord Justice Beatson
Case No: B3/2015/0409
Derek O'Sullivan QC (instructed by Bond Dickinson LLP) for the Appellant
John Foy QC and Shahram Sharghy (instructed by Irwin Mitchell LLP) for the Respondent
Hearing date: 25/04/2016
On 13 April 2011, the claimant was visiting Carisbrooke Castle on the Isle of Wight when, in circumstances that I shall describe, he fell and suffered a serious head injury. Carisbrooke Castle is managed and occupied by the defendant. In these proceedings, the claimant says that the accident was caused by the defendant's negligence and/or breach of section 2 of the Occupiers Liability Act 1957 ("the Act"). In a judgment given on 20 January 2015, Mr Recorder Blunt QC found that the claimant's injury was caused by the defendant's breach of section 2 of the Act in failing to warn visitors by means of a sign of the danger which gave rise to the accident. But the Recorder found that the claimant was 50% to blame.
The claimant was almost 60 years of age at the time. He was a professional man. Prior to the accident, he was fit and well. He had no history of fits, dizzy spells, passing out, disorientation or anything that might have contributed to or caused the accident. He had no memory of it.
The castle fortifications comprise various stone and earth works. They include an outer bastion which comprises not only the outer bastion wall, but also ramparts, ditches or moats and angled corner bastions. The outer bastion is open to the public who can gain access without entering the site through the entrance shop at its western end. There are and at the material time were two designated walks, one of which is known as the "Bastion Walk". The Bastion Walk runs round the tower fortifications and an area known as the "Bowling Green". It is approximately 10–12 feet wide. Just north east of the Bowling Green, there is an elevated firing platform known as the north- east bastion where two cannons are sited. I shall refer to this as "the platform".
The platform is flat and surrounded by a low bank and stands at least 25 feet above the outer bastion. Directly below the platform (at the base of a steep slope) is a grass pathway running along part of the top of the outer bastion wall. I shall refer to this as "the grass pathway". At the point beneath the platform, the grass pathway is approximately 10 feet wide. On the side of the grass pathway away from and below the platform there is a dry moat.
The slope from the platform down to the grass pathway is very steep. There was also at the material time an informal path down the steep slope from the platform to the grass pathway. The grass and other vegetation on the slope had been worn away in places by the feet of visitors who had opted to access the grass pathway by the most direct route from the platform. The Recorder found that the defendant's employees must have been aware of the use of this route by visitors.
On the day of the accident, the claimant, his wife and their grandchildren were on the platform. The children were playing on the cannons. The claimant left the others and went down the steep informal path in the direction of the grass pathway. Although he had no recollection of what happened next, it is clear that he must have attempted to walk down the informal path (rather than sliding down on his bottom) and must have lost his footing and been propelled across the grass pathway and over the sheer face of the bastion wall into the moat.
A central issue in this case is 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. A proper understanding of the topography of this part of the site is therefore important.
The Recorder had the benefit of a site visit. He said:
"14. Beyond the bastion path, the ground slopes slightly upwards in a manner which has been described as a "lip" before sloping down quite steeply to the top of the stone work of the bastion wall itself. The stonework, not surprisingly, is vertical, so there is a sheer drop from the top of the stonework to the dry moat below. The drop from the top of the stonework to the bottom of the moat is about 10 feet. But the drop from the level area of the pathway above is, I estimate, about 12 to 15 feet, when standing on the artillery platform looking east, one can see the path below and the bottom of the dry moat beyond, but one cannot see the stonework below the pathway and one cannot see the sheer drop.
15. Someone visiting the castle for the first time, following the route which the Taylor family took, which I shall be describe in a moment, on the day in question can be forgiven if he or she did not, when standing on that platform, appreciate that there was, in fact, a sheer drop between him or her and the bottom of the dry moat."
He made much the same point at para 40:
"As I have already indicated, I think, when you stand on the platform you can see certainly that there is a dry moat down below of some considerable depth, and below the level of the bastion path, but you cannot see the sheer drop and you would have no reason to suppose that there was such a drop, though obviously that would be a possibility. As I have indicated, as one moves across the bastion pathway, sideways across the pathway, there is a slight lip or upward slope, and then there is a steep downward slope, also of grass, before one gets to the top of the stonework. So if one is standing on the artillery platform the presence of that sheer drop is, in fact, masked."
At para 19, the Recorder said:
"There is a clear risk to anyone walking along the bastion path, because of the sheer drop and the absence of any safety rails, and I find that that feature was and is a danger to visitors of which they need to be warned. This is recognised by the Defendants who placed warning signs – three in number. There is one at the very start of the Bastion Walk and this is depicted in one of the photographs before me. That sign consisted of two flat pieces of wood on a wooden post. The top part of the sign indicates or bears the words "Bastion Walk" with an arrow pointing the direction to it. Below that on the other piece of wood there is a triangle which is coloured yellow which depicts a matchstick man falling over a vertical edge and it bears the words "Sheer Drop". There are two other warning signs somewhere in that area but they would not be visible to any visitors who went straight from the entrance shop/ticket office directly into the gatehouse."
At para 28, he said that no one had suggested that it would be disproportionate or unreasonable to place a few extra signs in strategic places. He then explained why he considered that the defendant had been in breach of section 2 of the Act. He said:
"30. The fact that the sheer drop beside the bastion path, beside the path along the Bastion Walk was and is a danger to visitors and that they need to be made specifically aware of it is and was recognised by the Defendant. This is evidenced by the sign which was placed at the commencement of the designated Bastion Walk. Objectively it is clear, and I find as a fact, that that sheer drop represents a danger to persons on the bastion path unless visitors are clearly warned of its presence."
He continued:
"33. It might be argued that because the visitors appeared to be walking down the steep bank of the artillery platform to access the bastion pathway, there should be a warning in the vicinity of that informal path: the Defendant should have recognised the risk which visitors, especially children, travelling down that informal path might encounter – as if they are going at such a speed that they are unable to stop before finding themselves falling into the dry moat beyond. It would, in fact, have been possible and in my view not disproportionate to put a small length of fence at the eastern edge of the bastion pathway where the informal pathway merges onto it. However, there is not evidence that the Defendant's staff ever saw anyone getting into danger as a result of going down the bank on the informal path, and no evidence of any reports of such a danger. And therefore I do not consider that the failure to install some kind of railing or fencing in that place was negligent or a breach of duty.
34. However, as stated, in my judgment, the Defendant failed to comply with its duty under the Occupier's Liability Act, Section 2, and failing to provide additional signage of warning of the sheer drop just beyond the bastion path, in particular in failing to put such a signage on the artillery platform, or on the pathway below but large enough for it to be visible from that platform, so that someone standing on the firing platform and looking east would see the warning. The existence of the informal path was an indication that that was a point at which visitors might be accessing the bastion path, and indeed were actually doing so. The Defendant should have been alive to the possibility that visitors following the same route as the Taylors or a similar route, may not have been aware of the existence of the...
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