This post follows on from the previous one found here: Occupiers Liability – Part 1 and is contributed by Patricia Tuitt, Module Convenor for Tort law.
When discussing Occupiers Liability, senior judges had to deal with the difficulties of finding an objectively dangerous state of premises, as can be seen in two cases heard this year. The facts were presented in the earlier post (hyperlink) and the judgements are discussed here.
Let’s take a closer look at the judges’ reasoning
Both cases were brought on appeal and so in both cases the decision turned on whether the appeal judge(s) felt that the lower court judge had applied the correct test.
The Court of Appeal in Edwards concluded that the High Court Judge did not apply the correct test. The judge was preoccupied the nature/extent of the occupiers’ duty and failed to give due attention to the issue of whether the ornamental footbridge posed an objective danger (see para 38)
Lord Justice Mc Combe (delivering the leading judgment) did find an objectively dangerous state in relation to the ornamental footbridge, on the basis only that:
‘…a bridge with no sides or only low ones may present a danger from the state of the premises” such as to give rise to the common duty of care” (para 42).
However, Mc Combe LJ found that Sutton Borough had reached the requisite standard of care even though it, in effect, did nothing in the face of the objectively dangerous state of the footbridge. He was not prepared to accept that the finding of an objectively dangerous state is alone sufficient to give rise to a duty to remove, alleviate or warn against the danger. In short, ornamental bridges without side rails can still be constructed without, per se leading to obligations under the OLAs (see para 42). Not only can such premises be erected, there is no duty to warn users of the absence of side rails. The dangerous state (unguarded sides to the bridge) was evident to all, and it is now settled law that an occupier of land is not “…under a duty to protect, or even to warn, against obvious dangers…” (see para 43).
In the Manley case, a power failure affecting the lighting in Manley’s cell created an objectively dangerous state. On the question of breach of the common duty of care, one infers from the judgment ( paras 26-29 in particular) that had the Defendant repaired the power failure within the period of twenty minutes which was the expected timeframe within which such a repair would have been completed (para 12) there would have been no breach of the occupancy duty. The repair was delayed for 15-20 minutes (para 26) and it was during this extended period that the accident happened. The delay alone was not material, what was material was that the Claimant had made clear to an appropriate official that his temporary mobility made timely repair imperative.
Readers should note that neither Edwards nor Manley involved consideration of novel questions and new legal principles. As noted in the Edwards judgment, the legal principles applied in the cases had been established by the House of Lords in the case of Tomlinson v Congleton Borough Council  UKHL 47.
The Judgements in Edwards and Manley are linked to this blog post. I look forward to reading your comments.