Case alert – Singh v The City of Cardiff Council  EWHC 1499 (QB)
The High Court found a Local Authority was not liable for personal injuries sustained by the Claimant after falling in a brook following a night out.
The Claimant was walking home along a footpath leading to a footbridge over a brook, when he fell and sustained severe injuries.
Blood tests were carried out the following morning which showed the Claimant had consumed a considerable amount of alcohol equivalent to 2 and ½ times the legal limit for driving.
The footpath is used frequently by members of the public and the Claimant going to and from a housing estate. The path is approximately 2 metres wide, with two lampposts on either end of the pathway, and concrete edging units along the side. At the point where the footpath approaches the bridge, one of the concrete edging units was missing and other edging units were cracked and uneven.
The Claimant gave different accounts of how he ceased to be on the path and came to be on the sloping ground adjacent to it, including slipping on pebbles and going into the bushes after hearing someone in distress.
The court had to decide whether the injuries were caused by:
- A breach of duty under section 41 of the Highways Act 1980 to maintain the footpath;
- A breach of duty owed by the council under section 2 of the Occupiers' Liability Act 1957; or
- Common law negligence.
Section 41 of the Highways Act 1980
The Claimant argued the unevenness of the surface of the footpath and the irregularity of the concrete edging unit, gave rise to a state of disrepair which caused the Claimant to slip off the path.
The court held any alleged defect in the footpath did not cause the Claimant's injuries. The judge concluded the Claimant voluntarily stepped off the footpath after hearing a noise in the bushes and stood on the ground adjacent to it. He then lost his balance, fell backwards and slid down the slope on his back, feet first into the brook. Furthermore the broken and uneven edging units were not considered to be in a state of disrepair for the purposes of this case, as the footpath was wide enough for persons to pass without having to step on the edging units.
There were no records of any other accidents occurring at this location and whilst the judge emphasised his conclusion was not dependent on this fact, it reinforced the conclusion that he reached.
Section 2 of the Occupiers' Liability Act 1957 ('OLA')
The Claimant submitted the Defendant was the occupier of the land adjacent to the path and as the Claimant was permitted to enter onto the land the Defendant had a duty to ensure it was safe by fencing the top of the bank.
The court held the council had taken reasonable steps to ensure persons who used the adjacent land for the purposes incidental to use of the footpath were reasonably safe in doing so. It was obvious to persons who stepped off the footpath that there was a steep slope to the left which led to a brook. Furthermore the Claimant willingly accepted the risks of falling into the brook as he voluntarily stepped off the footpath.
Common law negligence
It was held the Local Authority was not negligent under common law as the footpath and footbridge did not create a hazard or introduce a danger and therefore did not cause the Claimant's injuries. The footpath was 2 metres wide leading to a footbridge over a brook which had guard rails along the side.
The judge stated even if he had found the Defendant liable under section 2 of the OLA he would have made a finding of contributory negligence of 70% due to the Claimant's intoxication.
What can we learn?
- The courts will consider whether there are records of previous accidents of a similar nature at the location in question. Whilst a court's conclusion will not be dependent on this information, the absence of records will be influential in the court's decision.
- The courts will consider the purpose and function of the premises when deciding if it defective under section 41 of the Highways Act 1980. In this case, whilst the concrete edging units were broken and uneven, the risk of a person injuring themselves on them is relatively low as the footpath is wide enough for persons to pass without having to walk on the edging units.
- The Claimant's intoxication will usually be a significant factor when it comes to contributory negligence; however it is important to note that this is not always the case. See AB (A protected party by his litigation friend, CD) v Pro-Nation Ltd  where the judge held drinking and having a moment of inattention did not constitute blameworthiness used for a finding of contributory negligence.