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Joshua Hughes

Partner, Bolt Burdon Kemp

Warning signs: a delicate balance

Practice Notes
Warning signs: a delicate balance


There is a balance to be struck between mitigating the risk of injury and avoiding oversized warning signs in public spaces, as Joshua Hughes explains

The recent appeal in Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB), an occupiers’ liability claim, brings into focus the delicate balance between the desirability of recreational activities in public places, and the need to mitigate against the risk of injury to lawful visitors. 

In August 2014, the claimant (Phoebe Lewis) sustained facial injuries when she was struck by an errant cricket ball hit from a nearby cricket pitch while walking through London’s Battersea Park. The claimant argued that the de-fendant council had failed in its duty owed to park users by permitting a cricket match to be played under what were alleged to have been dangerous conditions. 

The facts of the case were not in dispute; nor was it contested that the defendant owed the claimant a duty of care and or a duty under section 2 of the Occupiers Liability Act 1957 (OLA 1957). 

First Instance 

At first instance on 21 November 2019, the court distinguished Ms Lewis’ claim from the landmark decision in Bolton v Stone [1951] AC 850 nearly seven decades earlier. The claimant succeeded and was awarded damages for her injuries. 

Hearing the case, Mr Recorder Riza QC, sitting at Wandsworth County Court, found that the council was foolish to adopt a stance that warnings would have made no difference. 

Specifically, he found that the defendant council had failed in its duty to the claimant on the basis that it permitted pedestrians to walk alongside the adjacent cricket pitch without offering any warning that:

  • a cricket match was in progress;
  • a hard ball was being used; and 
  • the boundary of the pitch ran alongside the path on which the claimant was walking. 

The Recorder found that in his judgement on the facts, “the possibility of an incident and the possibility of injury are quite extensive. Obviously if a ball rains down on one as one is walking on the pathway and causes an incident, the incident is probably going to be serious injury as occurred in this case to be the area of the head, and in particular the eyes”. 

Accordingly, the claimant was awarded £16,911.84 for facial injuries plus her costs; and the defendant was granted permission to appeal on several grounds.

The Appeal 

Twelve months later, Stewart J raised a judicial eyebrow at the Recorder’s decision to disregard statistics submitted by the defendant, regarding how many cricket matches were played in the park each year. He categorised this, among other findings, as an express failure to take account of material factors. 

He was also critical of the apparent “lack of logic” in the Recorder’s analysis of the failure to warn that followed. 

Dealing with the occupier’s duty to provide warnings, Stewart J commented upon statistical evidence as to the number of games played over a long period of time and lack of previous injury or incidents, and found that these were factors that should be given weight. 

In doing so, he found that while a lack of prior incidents was not determinative of liability, the data did suggest that the chance of an accident occurring in these circumstances was remote. 

Perhaps of unique importance to this case was that the claimant was a regular visitor to the park. She was aware of the existence of the cricket pitch and accepted in evidence that there might have been a match in progress. In the context of warning signs, this is likely to have lent weight to the argument that the risk of cricket balls being struck towards the path and beyond the boundary was an obvious one for which, in this case, the ‘but for’ test could not be satisfied by the claimant. 

Unlike the circumstances in Bolton v Stone, the risk of balls being hit towards the path was deemed so evident that a warning or sign of the type suggested at first instance would have been “superfluous” and made no difference. 

Stewart J allowed the appeal and concluded: “In the circumstances which obtained, allowing pedestrians to walk along the path when a cricket match was taking place was reasonably safe, the prospects of an accident (albeit nasty if it occurred) being remote. The remoteness is reinforced by [the] evidence as to statistics. Further and in any event the alleged breach by failure to warn the claimant in the terms suggested does not withstand proper analy-sis.”


Cases of this type will usually be risk-assessed in the context of the OLA 1957. Fundamentally, and applying the common law duty of care, occupiers must take reasonable care to see that the visitor is reasonably safe in using the premises when considering all the circumstances of the case.

I have considerable sympathy for Ms Lewis, who might understandably feel aggrieved that she was injured, without remedy, by the materialisation of risk relating to an activity for which she did not seek to engage. 

However, the first instance court gave insufficient weight to the requirement of “reasonableness” under the OLA 1957 and the concept of remoteness. In doing so, the court risked imposing on the occupier a strict duty to prevent all injuries. 

Nevertheless, this decision should not be interpreted to mean that where there is a low likelihood of harm, it will be reasonable for an occupier to disregard the risk and fail to warn. As we are obliged to say, each claim will turn on its individual facts – and this was certainly the case in Lewis.

When considering the scope of the duty owed to visitors to public spaces (and though not determinative in Lewis) it is important to reflect on the spirit, if not the wording, of section 1 of the Compensation Act 2006. In my experi-ence, this is an often-forgotten provision introduced in response to a perceived ‘evil’ of a compensation culture.

It requires a court, when considering a claim in negligence or breach of statutory duty, to have regard to the poten-tial impact of risk-mitigating measures on preventing desirable activities taking place or discouraging people to en-gage in those activities. This is effectively public policy now enshrined in law. 

Against this backdrop, comparisons can start to be drawn with other ‘public spaces’ claims where an occupier’s duty to warn and the reasonableness of measures will need to be assessed. The OLA does not, of course, require an eradication of all risks; and responsibility for safety is shared by visitors. 

Furthermore, maintaining the character of our countryside and outdoor spaces demands that countless, oversized and colourful warning signs advising of remote risk of injury for fear of litigation is to be avoided. 

However, the need to ensure that lawful visitors to these public spaces are not left exposed to less obvious hazards (for which, unlike those engaging in sporting activity who knowingly accept a degree of risk, they did not and should not be taken to have assumed) cannot be overstated. To this end, I would argue that the defendant’s aesthetic ar-gument against the use of warning signs in Lewis has its limitations. 

Finally, when determining whether an occupier has discharged their duty of care to an injured visitor, there are some important principles to bear in mind, several of which are distilled from the case of Bolton v Stone. These include:

  • How obvious the danger is (the more obvious the danger, the lower the obligation to warn).
  • The foreseeability of the danger 
  • materialising (for which data can prove helpful).
  • The effectiveness of warnings 
  • implemented.
  • The existence of risk assessments.

Joshua Hughes is a partner at Bolt Burdon Kemp