Case No: B3/2015/0409
Neutral Citation Number: [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

Date: 11/05/2016
Before:

THE MASTER OF THE ROLLS
LORD JUSTICE McFARLANE
and
LORD JUSTICE BEATSON

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Between:

	ENGLISH HERITAGE	Appellant	
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	TAYLOR	Respondent	

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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

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Judgment
Master of the Rolls:  
1.	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. 
2.	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.
3.	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”. 
4.	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.  
5.	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. 
6.	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.   
7.	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.
8.	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.”
9.	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.”
10.	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.”
11.	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.”
12.	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 bastion wall at all, or if they were aware of it might not aware of how close it was to the artillery platform, or of the fact that it incorporated a sheer drop.  This however, does not by itself render the Defendant liable, it leads to the question of causation.”
The law
13.	Section 2 of the Act provides: 
“(1) An occupier of premises owes the same duty, the ‘common duty of care’ to all his visitors…..
  (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
14.	The relevant legal principles are not in doubt.  In Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46 at para 46, Lord Hoffmann said that there is no legal duty on occupiers of land to safeguard irresponsible visitors against dangers which are “perfectly obvious”.  A duty to protect against obvious risks exists only in cases where there is no genuine and informed choice.  In the earlier case of Staples v West Dorset District Council [1995] PIQR P442, Kennedy LJ said much the same:
“It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without warning the visitor in question would been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability…; but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required.  So, for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff.”
The grounds of appeal
15.	Mr O’Sullivan QC submits first that the Recorder’s decision that the defendant was in breach of section 2 of the Act was wrong because (i) he should not have found that the sheer drop from the grass pathway into the moat would not have been obvious to an adult visitor standing on the platform; (ii) he failed to address the question whether, if as he found at para 40, you could see from the platform that there was a dry moat down below of “some considerable depth”, it followed that the drop was an obvious danger against which there was no need for the defendant to protect visitors; and (iii) the finding at para 33 (which was open to the Recorder and was correct on the evidence) was inconsistent with para 34.  Secondly, he submits that the Recorder was wrong to find that the defendant’s breach of duty caused the claimant to suffer the accident (“the causation issue”). Thirdly, Mr O’Sullivan challenges the Recorder’s conclusion that the claimant was 50% to blame (“the contributory negligence issue”). 
Breach of duty
16.	I start with Mr O’Sullivan’s first reason and his challenge to the Recorder’s finding of fact that the sheer drop from the grass pathway into the moat was not obvious from the platform.  Mr O’Sullivan relies on Manning v Stylianou [2007] EWCA Civ 1655 at paras 13 and 19 to submit that, where a finding of fact is based on an interpretation of photographs and where an appellate court is in the same position as the trial judge to interpret the photographs, it is open to the appellate court to reverse the finding of fact.  I accept this as a general proposition.  But the Recorder did not base his finding of fact solely, or even principally, on the photographs   He had the benefit, denied to this court, of making his assessment on the basis of a site visit as well as on the basis of the photographs.  I am conscious that regrettable technical difficulties limited our ability to see the DVD that had been made of the site by the defendant’s solicitors.  But I am satisfied that, even if we had been able to watch the DVD, we would not have been in as good a position as the Recorder to make a judgment as to whether it was obvious to a person standing on the platform that there was a sheer drop from the grass pathway to the  moat.  The Recorder was right (or at least entitled) to find as a fact that it would not have been obvious to a person standing on the platform that the sheer bastion wall that was visible to such a person continued at a right angle below the grass pathway.  The most that could be said was that, as the Recorder noted at para 40, it would have been obvious that there was a dry moat of “some considerable depth” below the grass pathway.  In my view, Mr O’Sullivan’s attempt to persuade this court to reverse the Recorder’s finding of fact is hopeless.  
17.	As regards Mr O’Sullivan’s second reason, it is true that the Recorder did not address the question whether the drop of “some considerable depth” that could be seen was an obvious danger from which it was not necessary to protect visitors.  That is not surprising, since the claimant’s case was that his accident was caused by the sheer drop which could not be seen and which was not an obvious danger from which visitors needed to be protected.  The focus on the reference in para 40 to the moat down below being of “some considerable depth” was seized upon by Mr O’Sullivan in his reply.  It is true that he argued that, even if it was open to the Recorder to find that it was not obvious to a visitor standing on the platform that the drop from the grass pathway into the moat was a sheer drop, it was still the case that the layout of the land below the platform was (save for the fact of the drop being a sheer drop) obvious to a visitor such as the claimant; and hence it was obvious to the visitor on the platform that the slope down from the platform to the grass pathway was steep.  But it formed no part of the defendant’s case that, if (contrary to its primary case) the sheer drop from the grass pathway to the moat could not be seen, it was at least obvious that there was a considerable drop which represented an obvious danger.  I should add that in terms of dangerousness, there is a clear difference between a sheer wall and a steep slope.  
18.	As regards the third reason, Mr O’Sullivan submits that there is an inconsistency between paras 33 and 34 of the Recorder’s judgment.  In para 33, the Recorder rejected the suggestion that the defendant was in breach of duty in failing to place a small length of fence at the eastern edge of the grass pathway where the informal pathway merges into it; and he did so notwithstanding that it would not have been disproportionate to place a fence at that location. The reason he gave was that there was no evidence that the defendant’s staff ever saw anyone getting into danger as a result of going down the informal path and no evidence of any reports of such a danger.  He held that the failure to instal a fence there was not negligent or in breach of duty.  On the other hand, in para 34 he found that the defendant was in breach of duty in failing to provide additional signage on the platform or on the grass pathway below, despite the fact that there was no evidence of anyone getting into danger as a result of going down the informal path and no evidence of reports of such a danger.  
19.	Mr O’Sullivan submits that the only basis for the finding at para 33 was that the Recorder considered that it was not reasonably foreseeable to the defendant that a visitor would suffer injury in the manner and circumstances of the claimant’s accident.  He submits that this was a finding that was open to the Recorder; and indeed, it was the correct finding to make on the evidence.  At para 34, the Recorder found that the defendant owed a duty to visitors standing on the platform to warn them that there was sheer drop from the grass pathway into the moat.  Mr O’Sullivan submits that this finding must have been made on the basis that it was reasonably foreseeable to the defendant that somebody standing on the platform would be at significant risk of personal injury by virtue of the sheer drop from the grass pathway into the moat.  
20.	Mr Foy QC concedes that it is not clear why the Recorder distinguished between the installation of a small length of fence and the need for additional warning signs that could be seen from the platform.  I accept that the two paragraphs are inconsistent with each other.  But it does not follow that the Recorder’s clear conclusion in relation to the warning signs was wrong.  It could as readily be argued on behalf of the claimant that the Recorder’s conclusion that the failure to provide fencing was wrong.  The question is whether the inconsistency in the Recorder’s reasoning undermines his conclusion in relation to warning signs.  In my view, it does not.  It may be that, in reaching his conclusion in relation to the fencing, the Recorder was influenced by the evidence of Mr Porter (the Territory Properties Curator South-East for English Heritage) that fencing would have had a harmful impact on the character of the castle from which he quoted at para 27, although I accept that he did not give this as his reason in para 33.  At all events, the Recorder clearly found that the sheer drop was not visible from the platform and that it represented a danger.  As I have said in relation to Mr O’Sullivan’s first reason, there is no basis on which this court can properly interfere with the Recorder’s finding that the sheer drop was not readily apparent.  
21.	For these reasons, I would reject each of the three reasons advanced by Mr O’Sullivan for reversing the Recorder’s decision that the defendant was in breach of section 2 of the Act in failing to provide a sign on the platform or on the grass pathway.  The sheer drop was not an obvious danger and the defendant ought to have taken reasonable steps to protect visitors such as the claimant against it.  
The causation issue
22.	The Recorder dealt with this at para 41:
“Being the person that he is, a man who has engaged in responsible, rational and methodical activities all his life, I consider it unlikely that Mr Taylor would have stood up on that slope as he went down the informal path if he had known of the existence of the sheer drop.  I conclude, on the balance of probabilities, that he did not, and hence that the defendant’s breach of duty in failing to provide adequate warning of the sheer drop was causative of his accident.”
23.	Mr O’Sullivan submits that the Recorder’s finding on causation was wrong.  He says that, even allowing for the generous ambit which should be accorded to a first instance judge when considering findings of this kind, the Recorder’s decision on the causation issue should be reversed.  In particular, Mr O’Sullivan submits that it is not possible to square the notion of the claimant being a “responsible, rational and methodical man” with the known fact that the claimant attempted to walk down the steep slope at all.  This was an act of great folly: the claimant ought to have known that, at the very least, there was a moat below the grass pathway “of some considerable depth”.  The Recorder recognised the folly of the claimant’s own behaviour in his finding on contributory negligence.  The Recorder properly found at para 38 that the only safe way to descend the slope was on one’s bottom.  This was obvious and it was the way that Mrs Taylor descended the slope.  In short, a reasonable tribunal ought not to have concluded that a sign warning of the sheer drop into the moat would have led the claimant descending the slope on his bottom.
24.	I would reject these submissions for the reasons given by Mr Foy.  The risk that the claimant took in going down the slope in an upright position was that he would lose his balance and fall over on a steep grassy slope.  It would have been most unlikely to cause him to suffer a serious head injury.  The risk of falling 12 feet down a sheer drop was of a different order of magnitude.  It involved a real and obvious risk of serious injury. There is a clear difference between (i) simply going down a steep grass bank on one’s feet and (ii) going down a steep grass bank when one knows that there is a 12 feet sheer drop at the bottom of it.  A sign warning of the existence of the sheer drop would have been likely to influence the behaviour of most sensible individuals.  The Recorder was entitled to find that causation was established on the balance of probabilities.
Contributory negligence
25.	The Recorder dealt with this at para 42:
“As the bank is sufficiently steep for there to be a risk of injury, even if the sheer drop had not been there, had any person attempted to negotiate the informal path, or part of it, whilst standing, I consider that there is a considerable degree of contributory negligence in this case.  Mr Taylor, even if he was not aware of the sheer drop (as I have found he was not) must have been aware as he stood on the artillery platform and looked down, just how steep the bank was, and, accordingly, the appropriate assessment of contributory negligence is that he was fifty per cent to blame for his accident.”
26.	It is well established that an appellate court will not interfere with a lower court’s apportionment of contributory negligence: see Clare v Perry [2005] EWCA Civ 39 per Pill LJ at para 44 and Jackson v Murray [2015] UKSC 5, [2015] 2 All ER 805 per Lord Reed at para 31.  Mr O’Sullivan submits that the Recorder’s 50/50 apportionment was wrong in principle.  He should have held that the claimant was substantially more responsible than the defendant for the accident and the injury.  In support of this submission, he relies on the arguments that he advances in relation to the issue of causation.  
27.	For the reasons that I have given for refusing to overturn the Recorder’s finding on causation, I would uphold his apportionment.  The Recorder had to balance the degree of fault and causation of injury.  50/50 was a reasonable apportionment.   I agree with Mr Foy that it is relevant on the facts of this case that the defendant’s fault was of long standing, whereas the claimant’s was momentary. 
Conclusion
28.	Mr O’Sullivan says that the Recorder’s finding against the defendant is extremely important.  He says that, as with many public organisations which have large areas of land and premises open to the public, it has acted (as an occupier) in a way consistent with the principle that adult visitors do not require warnings of obvious risks except in cases where they do not have a genuine and informed choice.  He also says that, if we dismiss this appeal, organisations like English Heritage will be under pressure to adopt an unduly defensive approach to their guardianship of historic sites which are part of our precious heritage and this will lead to an unwelcome proliferation of unsightly warning signs.  This is contrary to the public interest.  The courts should be astute to avoid such a consequence.  Moreover, a decision in favour of the claimant in the present case will fuel the popular conception that this country is in the grip of a compensation culture.
29.	I do not accept these in terrorem arguments.  First, the decision that I have reached in this case is a straightforward application of the principle to which I have referred at para 28 above.  There is no basis for interfering with the Recorder’s finding that the sheer drop from the grass pathway into the moat was not an obvious danger.  
30.	Secondly, I accept that questions of whether a danger is obvious may not always be easy to resolve.  In some cases, this may present an occupier of land with a difficulty.  But there are many areas of life in which difficult borderline judgments have to be made.  This is well understood by the courts and is taken into account in deciding whether negligence or a breach of section 2 of the Act has been established.  In this context, it is highly relevant that the common duty of care is 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 he is invited or permitted by the occupier to be there.   The court is, therefore, required to consider all the circumstances.  These will include how obvious the danger is and, in an appropriate case, aesthetic matters.   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.  But the steps need be no more than reasonable steps.  That is why the decision in this case should not be interpreted as requiring occupiers like English Heritage to place unsightly warning signs in prominent positions all over sensitive historic sites.  They are required to do no more than take reasonable steps.  The Recorder found the existence of a breach of the common duty of care on a very specific basis, namely the failure to provide a sign warning of a sheer drop which was not obvious.   
31.	I have added these concluding comments because it is important that the significance of this decision should not be misunderstood.  But for the reasons that I have given, I would dismiss this appeal.
Lord Justice McFarlane:
32.	I agree.
Lord Justice Beatson:
33.	I also agree.