Singh v City Cardiff Council [2017] EWHC 1499 (QB)

The facts

The claimant was involved in an accident when he was walking towards his house after he had been out drinking. He had consumed a significant amount of alcohol and was approximately two and half times over the legal driving limit.

The claimant alleged that on his way home he fell from a footpath into a brook. The footpath which the claimant had been using turned into a footbridge that took users over a brook to the other part of the housing estate.

The claimant alleged that there were broken and uneven edging units along the footpath and that there was a depression of over 40 millimetres causing there to be a change in level from one side of the footpath to the other. Also, the claimant alleged that the lamppost nearest the footbridge was not working at the time of the accident and that the top of the bank should have been fenced off.

This claim went to the High Court and the following points were considered:-

  1. Whether the accident was caused by a failure by the defendant to maintain the highway in breach of its duty under section 41 of the Highways Act 1980.

  2. Whether the accident was caused by the defendant’s failure to take reasonable care to ensure that the claimant was reasonably safe when using the land adjacent to the footpath for the purposes for which he was permitted to be there, in breach of section 2 of the Occupiers’ Liability Act 1957 (OLA 1957).

  3. Whether the defendant owed the claimant a duty of care at common law for damage attributable to the dangers that it has caused, which in turn was the cause of the accident.

Decision

In respect of the first question, the High Court concluded that the defendant was not in breach of section 41 of the Highways Act 1980 because any alleged broken and uneven edging units were not in a state of disrepair. Also, the High Court concluded that the change in level of the footpath was not a defect which required repair.

In any event, it was held that any alleged defect in the highway did not cause the injury that the claimant had suffered. It was found that, on balance, the claimant’s accident occurred when he was on the sloping gradient that was adjacent and to the left of the footpath. It was concluded that the claimant voluntarily left the footpath and when on the adjacent land lost his balance and fell backwards, sliding down the slope on his back.

In response to the second question, the court found that the footpath was wide, measuring approximately 2.1 metres, and its purpose was to lead to the footbridge in order to enable people to cross over the brook. It was stated that the circumstances where a person would have to leave the footpath would be relatively low. Also, the Court of Appeal concluded that the purposes for which people were invited or permitted to be present on the land adjacent to the footpath were reasonably incidental to the use of the footpath.

Lewis HHJ applied the Court of Appeal case of Edwards v London Borough of Sutton [2016] EWCA Civ 1005, when assessing the risk of the likelihood of injury. He stated that the “… risk of someone stepping off the path and then falling on the gradient and then sliding into the brook was low … there had been no reported accidents in relation to the footpath which had been used many thousands of times for over at least 20 years … My conclusion is reinforced by, but not dependent on, the absence of reported accidents.

Further, it was held that it should be obvious to people if they have stepped off the footpath and they should be aware of the nearby brook and the need to take care. As per the judgment in Edwards v London Borough of Sutton [2016] EWCA Civ 1005, it was seen that the defendant did not have a duty to protect, or even to warn visitors of this obvious danger and that the claimant voluntarily accepted the risk when stepping off the footpath.

In relation to the third question, it was concluded that the defendant had not created a hazard or introduced a danger by creating the footpath and footbridge. It was specifically stated that the footbridge was sufficiently wide and provided ample room for users. Also it was found that the footbridge had adequate guard rails so as a result, the defendant was not in breach of any common law duty of care owed to the claimant.

Although it was recognised that the claimant had suffered serious and life changing issues as a result of the accident, the claim was dismissed because there was no legal basis for establishing liability against the defendant.

What this means for you

This is a welcome judgment highlighting that there needs to be a defect warranting repair for there to be a valid claim under section 41 of the Highways Act 1980. In particular, it can be seen that a slight change in the level of a footpath or a missing edging unit on an otherwise suitable pathway will most likely not constitute a defect if the footpath was otherwise in suitable condition for its intended use.

It can be seen that the High Court reached a sensible decision by taking into account the fact that the footpath had been used thousands of times with no previous reported accidents or complaints. Also, there are many footpaths of this nature throughout the country where there may be blemishes or imperfections with the footpaths but this does not necessarily mean that these are defects that constitute a hazard warranting repair. Also these blemishes and imperfections do not automatically mean that that the footpath is in a state of disrepair.

In this case, the High Court applied the principles in Edwards v London Borough of Sutton [2016] EWCA Civ 1005, by considering the likelihood of the injury, the seriousness of the injury which could occur, the social value of the activity giving rise to the risk and the cost of any preventative measures. Also, it was reiterated that section 2 of the OLA 1957 does not place landowners under a duty to protect, or even to warn, visitors against obvious risks.

This judgment should not be taken to mean that blemishes and imperfections on the land can be left without being inspected and assessed. In this case, the High Court concluded that the defendant would have been liable if there had been a defect that was causative of the accident because there was no evidence of a suitable system of maintenance and inspection.

In order to avoid potential claims of this nature, there should be systems in place to inspect and maintain the land and to identify and repair any potential defects. Also risk assessments should be carried out in order to identify potential hazards, assess the risk of any accidents occurring and assess the severity of any injury arising as a result of these potential hazards.