The court dismissed the claimant’s claim for damages for injuries incurred as a result of him falling down a flight of steps on a public footpath.

The claimant claimed damages from the first defendant local authority and the second defendant streetlight contractor. He had fallen down a flight of steps at a point where a public footpath negotiated a steep drop in level. The claimant claimed the fall was caused by the fact that a streetlight intended to illuminate the steps had not been working at the time. The local authority was responsible for the footpath and its lighting and the second defendant had contracted with the local authority to maintain the streetlights.

It was accepted that the streetlight was not working. The issue was whether the defendants owed a duty of care to the claimant. The claimant submitted that the Highways Act 1980 s.97(3) expressly provided for compensation to be paid to anyone who suffered damage by reason of the execution of works under that section. The defendants submitted that they owed no duty of care to the claimant because the local authority provided street lighting pursuant to a power contained in s.97 of the Act, and its failure to repair the streetlight was therefore a failure to exercise a power rather than breach of a duty.

The court found in favour of the defendants. s.97(3) was designed to protect those who were directly affected by the carrying out of works to provide streetlights. It was not intended to create liability for nonfeasance in circumstances such as the instant case.

Liability could be established only if the defendants performed some positive act that created a danger. The defendants would not be regarded as having performed a positive act where it undertook work to remove a hazard but failed to do so completely. The circumstances of the instant case amounted to nonfeasance. The inherent danger was the sudden drop in level. To the extent that the local authority provided, adapted or maintained the steps, those did nothing to add to the danger; indeed they reduced it significantly, as did provision of the light. The presence of the streetlight, if lit, reduced the danger and, if unlit, did nothing to increase it.

The claimant could not claim to have relied upon the streetlight. The presence of the lamp, if unlit, would not cause anyone to rely on it. It would be perfectly obvious that it was not lit and that it was not possible to see what was ahead. There could be no doubt that if the local authority had taken a conscious decision to switch the light off or even to remove it,  it would not have been liable. It would merely have been exercising its discretion under the statutory power. What was done was a failure to maintain the lamp, not an active step. That was nonfeasance, not misfeasance. No duty of care was owed by the defendants.