Obvious or concealed? Occupier's duty to warn visitors of the risks of injury

The Claimant stumbled on a steep slope on the fortifications of Carisbrooke Castle on the Isle of Wight; and then fell down a sheer drop into the castle's moat. He sustained a head injury and had no recollection of the incident.

An "informal path" had been worn away on the steep slope, and English Heritage were aware that visitors used it to descend the slope. English Heritage had erected signs warning of the drop into the moat at other points, but not where the Claimant fell.

The Court of Appeal recognised the established principle that there is no duty on occupiers of land to warn visitors about dangers which are perfectly obvious, stating that:

"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".

However the Court concluded here that, because of the topography of the land, the drop into the moat would not have been obvious to the Claimant when he started to descend down the informal path. As the risk was not obvious there was a duty to take reasonable steps to warn him about it, and erecting a sign would have constituted a reasonable step.

There was however also a finding that the Claimant was 50% to blame for his own injuries in descending the steep slope when it should have been obvious to him that he might fall (albeit not that he would fall into the moat).

Comment

The case underlines the principle that occupiers are not under an obligation to warn visitors about obvious risks. This principle applies to domestic property, as well as property that is open to the public.

The Court of Appeal recognised the practical issues here, and commented that "the question of whether a danger is obvious may not always be easy to resolve"

The outcome of this case can be contrasted with the High Court decision in Lisa Driver v The Painted House Trust (11 April 2014). The Claimant fell from a 3 foot wall, into the moat which surrounded a Roman house. She was not a lawful visitor (the incident occurred out of visiting hours) and was therefore owed the less stringent duty of care afforded to a trespasser under the Occupiers Liability Act 1984. However the Court concluded that after a night out drinking, the Claimant had been attempting to relieve herself at the other side of the wall. The moat was well-lit and was not a hidden danger. Her claim was dismissed.

In any occupier's liability claim, therefore, the Defendant should always consider whether the risk about which the Claimant complains was an obvious one, in which case it should be argued that no warning about the risk was required.