Slippers and Trippers

Transcription

1 Slippers and Trippers The Highways and Occupiers Liability Acts Hamish MacBean 29 th February

2 SPEAKER Hamish MacBean Call: 2002 Hamish s practice is wide-ranging, encompassing a mix of personal injury and general civil litigation work. His experience of court work includes involvement in fast and multi-track trials, interim hearings and detailed assessments of costs. Hamish is a forceful and effective cross-examiner who believes in taking a thorough and direct approach to his cases, quickly getting to grips with the key points and issues involved. His style when dealing with lay clients and instructing solicitors is friendly and approachable and, as a result of his time spent practicing as an in house advocate with a solicitors firm, he has a particular understanding of the dynamics of the relationship between clients and their legal team, especially where the day to day running of cases is concerned. 2

3 INDEX 1. Highways Act: Fernquest v Swansea [2011] EWCA Civ 1712 Micklewright v Surrey [2011] EWCA Civ 922 Dalton v Nottingham [2011] EWCA Civ 776 Kent v Lawrence [2011] EWHC 1590 (QB) Thomas v Warwickshire [2011] EWHC 772 (QB) Wilkinson v York [2011] EWCA Civ Occupiers Liability Acts: Armstrong v Keepmoat QBD Maynard v Wigan [2011] EWCA Civ 1613 Dawkins v Carnival [2011] EWCA Civ 1237 Sutton v Syston [2011] EWCA Civ 1182 Hufton v Somerset [2011] EWCA Civ 789 Clark v Bourne Leisure [2011] EWCA Civ 753 Geary v JD Wetherspoon [2011] EWHC 1506 (QB) Kmiecic v Isaacs [2011] EWCA Civ 451 3

4 The Law Highways Act 1980 Section 41 Duty to maintain highways maintainable at public expense. (1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway. (1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. (2) An order made by the Minister under section 10 above directing that a highway proposed to be constructed by him shall become a trunk road may, as regards (a) a highway to which this subsection applies which becomes a trunk road by virtue of the order, or (b) a part of a highway to which this subsection applies, being a part which crosses the route of the highway to be so constructed, contain such a direction as is specified in subsection (4) below. (3) Subsection (2) above applies to (a) any highway maintainable at the public expense by a local highway authority, and (b) any highway other than a highway falling within paragraph (a) above or a highway maintainable under a special enactment or by reason of tenure, enclosure or prescription. (4) The direction referred to in subsection (2) above is (a) in a case where the highway or part of a highway falls within subsection (3)(a) above, a direction that, notwithstanding subsection (1) above, it shall be maintained by the highway authority for that highway until such date, not being later than the date on which the new route is opened for the purposes of through traffic, as may be specified in a notice given by the Minister to that authority; and (b) in a case where the highway or part of a highway falls within subsection (3)(b) above, a direction that, notwithstanding subsection (1) above, the Minister is to be under no duty to maintain it until such date as aforesaid. (5) Where an order under section 10above contains a direction made in pursuance of subsections (2) to (4) above, then, until the date specified in the notice given by the Minister pursuant to the direction, in accordance with subsection (4) above, the powers of a highway authority under sections 97, 98, 270and 301 below as respects the highway to which the direction relates are exercisable by the highway authority to whom the notice is required to be given, as well as by the Minister. Section 58 Special defence in action against a highway authority for damages for non-repair of highway. (1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic. (2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters: (a) the character of the highway, and the traffic which was reasonably to be expected to use it; (b) the standard of maintenance appropriate for a highway of that character and used by such traffic; (c) the state of repair in which a reasonable person would have expected to find the highway; (d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway; 4

5 (e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed; but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions. (3) This section binds the Crown. 5

6 Fernquest v City & County of Swansea [2011] EWCA Civ 1514 It would be a considerable and unjustified extension of liability in the tort of negligence to say that bus companies who had knowledge of ice on pavements near bus stops on their routes had a duty to warn passengers before they boarded. Claimant gets on a bus owned by the Defendant Having got off at a bus stop, he walked a few paces before slipping on ice He sustained a fracture and torn ligaments to the left hand He sued the local authority both as Highways authority and also for failing to warn him At first instance, the claim under s. 41 was dismissed due to a proper maintenance programme HHJ Vosper QC, however, found that the Defendant ought to have warned the Claimant about the presence of ice and were negligent in not so doing The decision under the Highways Act was not challenged The Council was neither in occupation of the hazardous area, nor had it created the hazard To warn passengers of dangers after they had completed their journeys would be a considerable expansion upon the tort of negligence The Council could reasonably expect pedestrians to be aware of the icy conditions and the potential for ice forming It was excessive and neither just, fair or reasonable to impose a duty of care 6

7 Joanne Micklewright v Surrey County Council [2011] EWCA Civ 922 A judge had been entitled to find that the death of an individual killed by a branch falling from a tree overhanging the highway was not attributable to any negligence on the part of the local authority. Mr Imison and his family went out for a bike ride As he unloaded the bikes from the car he was struck by a falling branch weighing 1 ton He was killed and a claim brought under the LRMPA 1934 and FAA 1976 The tree in question was years old, 100 feet high, with a crown of 50 feet At first instance, HHJ Reid QC, found that the Defendant had no system of inspection in place, although one was being developed However, he went on to find that there was nothing which would have been detected had such an inspection been undertaken The Court of Appeal, with considerable reluctance, dismissed the appeal The Claimant had failed to prove, on the balance of probabilities, that an inspection would have revealed the significant internal decay The Court of Appeal acknowledged the very onerous duties on local authorities in inspecting trees. The evidence pointed to a visual inspection (not necessarily by an expert arboriculturalist) every 1 to 2 years Falling tree branch cases are likely to prove very difficult to substantiate in practice 7

8 Dalton v Nottingham County Council [2011] EWCA Civ 776 A local authority had not shown that it took such care as was in all the circumstances reasonably required to secure that a paved area, on which a pedestrian stumbled and sustained a serious injury, was not dangerous, and it had failed to make out a defence under the Highways Act 1980 s.58. Claimant fell whilst walking across a pedestrian area in Beeston The area in question was the most important pedestrian area in Beeston There was vehicle access to parts of the square The trip was caused by a loose, wobbling stone which was part of a herringbone pattern The differential in height was about ¾ of an inch There had been no recent reports of accidents The area had been inspected 9 days before and 11 days after the accident At first instance, judgment was entered for the Claimant The Court of Appeal upheld that decision Whilst the Judge had to make his own assessment of dangerous, the fact that after it was reported, the Defendant classified the defect as a Category 1 repair was plainly a relevant factor Minor depressions and potholes in pedestrian areas are a fact of life Here, the danger lay in a combination of the height differential and the instability The Council could not rely upon its own intervention level of 25mm as the stone in question was also loose and wobbling As the inspection had either missed the stone or not considered it a defect, the inspection was not sufficient to discharge the duty under s. 58 8

9 Kent County Council v Lawrence [2011] EWHC 1590 (QB) A manhole cover which protruded some 15mm above a pavement was not such that a reasonable person would regard it as presenting a real source of danger for the purposes of establishing a breach under the Highways Act 1980 s.41. Claimant was walking along Newbury Avenue in Maidstone She tripped over a manhole cover which protruded some 15mm The question for the Court was whether such protrusion was sufficiently dangerous to amount to a breach of s. 41 HHJ Caddick, at first instance, thought that it was and entered judgment for the Claimant There is nothing wrong with inspectors adopting a rule of thumb for inspections It was not appropriate to ask witnesses what they though, as opposed to what they saw or did The Judge ought not to have taken any account of witnesses views as to dangerousness The mere fact of remedial work having been carried out does not mean there was a duty to carry out such work The risk of injury from the demonstrated defect was of a low order and the fall must have been caused by inattention or misfortune The Defendant s appeal was therefore successful 9

10 Thomas v Warwickshire County Council [2011] EWHC 772 (QB) A highways authority was found to be in breach of its duty to maintain under the Highways Act 1980 s.41 when a cyclist sustained personal injuries after hitting a small spillage of concrete which was stuck to the highway causing a danger to traffic. However, the claimant's damages were reduced by 60 per cent for contributory negligence as he had not been cycling at a safe distance from the cyclist in front. Claimant was riding a bicycle along Gospel Oak Lane near Stratford-on-Avon as part of a cycling club The Claimant was cycling about 5-6 inches behind the cyclist in front of him His bike hit a lump of concrete in the road throwing him from his bike and rendering him unconscious The lump of concrete was 1 metre long, 10 centimetres wide and 25 millimetres high The C road was subject to a visual inspection every 24 weeks The concrete was in such a position that vehicles would not ordinarily have driven over it. Wilkie J found that the concrete had become part of the fabric of the road as it had bonded to it The fact that it got there accidentally, rather than deliberately, was irrelevant The fact that it was likely to be permanent or long standing was sufficient to bring it within s. 41 The concrete was such as to create a reasonably foreseeable risk of injury to a cyclist The Defendant was therefore primarily liable However, had the Claimant been cycling at a safe distance from the cyclist in front, he would have seen the concrete and been able to take avoiding action His contributory negligence was assessed at 60% 10

11 Wilkinson v City of York Council [2011] EWCA Civ 207 A highways authority which had deviated from the national code of practice for the maintenance of highways because of budgetary considerations could not rely on a defence under the Highways Act 1980 s.58 to a claim for damages caused by the authority's failure to maintain the highway. The Claimant was cycling along Whitby Drive in York Her front wheel hit a pothole throwing her over the handlebars The pothole was said to have been 30cm across and 4cm deep The last inspection was 10 months pre accident and was subject to 12 monthly inspections The Claimant won at first instance before a Deputy District Judge, subject to a 50% deduction for contributory negligence On appeal, the Circuit Judge overturned the decision, holding that the s.58 defence had been made out The question on appeal was whether the Defendant was entitled to depart from national guidelines due to budgetary constraints The Court found that the Deputy District Judge had been entitled to consider that as the road served people other than local residents it ought to have been classified as 4a requiring 3 monthly inspections There is nothing within s.58 which permits budgetary considerations The Council had to show that it had taken reasonable measures to repair the pothole, not that it had simply decided to allocate its resources elsewhere Departures from the national code needed to be supported and justified by evidence 11

12 The Law Occupiers Liability Acts Occupiers Liability Act 1957 (s. 2) Extent of occupier's ordinary duty (1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so. (4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and (b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. (5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another). (6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not. Occupiers Liability Act 1984 Duty of occupier to persons other than his visitors. (1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and (b) if so, what that duty is. (2) For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are (a) any person who owes in relation to the premises the duty referred to in section 2of the Occupiers' Liability Act 1957 (the common duty of care), and (b) those who are his visitors for the purposes of that duty. 12

13 (3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned. (5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk. (6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another). (6A) At any time when the right conferred by section 2(1) of the Countryside and Rights of Way Act 2000 is exercisable in relation to land which is access land for the purposes of Part I of that Act, an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of (a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or (b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile. (6AA) Where the land is coastal margin for the purposes of Part 1 of that Act (including any land treated as coastal margin by virtue of section 16 of that Act), subsection (6A) has effect as if for paragraphs (a) and (b) of that subsection there were substituted a risk resulting from the existence of any physical feature (whether of the landscape or otherwise). (6B) For the purposes of subsection (6A) above, any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape. (6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier (a) with the intention of creating that risk, or (b) being reckless as to whether that risk is created. (7) No duty is owed by virtue of this section to persons using the highway, and this section does not affect any duty owed to such persons. (8) Where a person owes a duty by virtue of this section, he does not, by reason of any breach of the duty, incur any liability in respect of any loss of or damage to property. (9) In this section highway means any part of a highway other than a ferry or waterway; injury means anything resulting in death or personal injury, including any disease and any impairment of physical or mental condition; and movable structure includes any vessel, vehicle or aircraft. 13

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15 Armstrong v Keepmoat Homes Ltd & others (unreported) QBD A local authority was not liable either under the Occupiers' Liability Act 1957, or at common law, for injuries caused to a child who had crossed a dual carriageway by accessing it from local authority land through a gap in a fence The Claimant, a 12 year old child, was struck by a car on the A189 at East Cramlington She sustained serious head injuries and had no recollection of the accident The driver was not identified There was a footbridge and an underpass which would have taken her across the dual carriageway She cut through a housing estate and then through a large gap in some shrubs She stepped out in front of a car and was hit at some speed The case was put broadly speaking on the basis of the failure to fence off the carriageway by the adjoining land owners It was said that the Defendant had removed the original fence There had at some point been a fence adjoin the carriageway It had a gap in it which led to a path created by use, rather than design The Defendant had constructive knowledge of the gap The Defendant could reasonably have foreseen that children would be tempted to use the gap and thence to cross the carriageway Where a path exists, which the Defendant has knowledge of and has neither blocked or erected a sign prohibiting its use, then a lawful visitor may be expected to use it Where a person leaves an occupier s land, there can be no liability on the part of the occupier for obvious danger existing beyond their land 15

16 Maynard v Wigan [2011] EWCA Civ 1514 A judge had not erred in implicitly accepting a witness' evidence as truthful and accurate in holding that a local authority had breached a duty of care owed to a visitor despite not clearly expressing his reasoning and consequent findings The Claimant was walking from her house in Pennine Walk to her car As she crossed a grass verge she alleged that her foot twisted in a hole causing injury Occupation of the land was accepted, as was the fact of the accident The Defendant denied that it had breached any duty There were no precise measurements of the hole. It was said to be between 4½ and 6 inches deep The Claimant alleged numerous complaints At first instance, she recovered 3,000 less a 50% deduction for contributory negligence It was not open to a Judge to find that the fact of someone falling was of itself evidence of a danger However, there was sufficient evidence for him to have formed the view that the hole was dangerous Crucially, the Claimant only succeeded as she had complained and no action had been taken Had there been no evidence of complaint, the claim would have failed 16

17 Dawkins v Carnival Plc [2011] EWCA Civ 1237 The court summarised the stages to be considered in a claim for personal injury by a passenger on a cruise ship in international waters, and where the burden of proof fell The Claimant was a passenger on the P&O cruise ship Oriana in international waters As she passed a drinks dispenser in a restaurant she slipped and fell on liquid on the floor The spillage could have occurred moments or several minutes before the accident The accident was near a clearing station where a member of staff was permanently present The Defendant had a system of weekly and daily inspections plus a clean as you go policy No evidence was led from any staff on duty that day At first instance the Recorder found that the Defendant had done all it reasonably could In such an area there was an obligation to pick up spillages almost instantaneously If the probability is of such contemporaneity between the spillage and the accident that remedial action could not reasonably be taken between them, the claim would fail In the absence of evidence as to operation of the system, the Recorder was not entitled to conclude that the spillage happened a very short time before the accident The Claimant therefore succeeded 17

18 Sutton v Syston Rugby Football Club Limited [2011] EWCA Civ 1182 A rugby club owed its players a duty of care to conduct an inspection of the pitch, at a reasonable walking pace, before a game or training session. However, the rugby club was not liable for the personal injury sustained by one of its players where such an inspection would not have revealed the object that had caused the injury The Claimant was a member of Syston U16s During a training session he was playing touch rugby In the act of scoring a try he gashed his knee on part of an old cricket boundary marker, which was below the grass level Damages were agreed at 54,000 No inspection of the pitch occurred before training, although it was admitted that it should have been The Defendant asserted that an inspection would not have picked up the marker The Claimant succeeds at first instance on the basis that an inspection would have revealed the marker There was no requirement to pay particular care to particular parts of the pitch A club was required to conduct an inspection at a reasonable walking pace Such an inspection would not have identified the marker Courts must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from the Courts than it should be 18

19 Hufton v Somerset County Council [2011] EWCA Civ 789 A school which operated a policy of preventing pupils from entering the premises directly into the school hall on rainy days by erecting wet weather signs as soon as it started raining was not expected to have a system in place for observing and removing water deposited in the hall during the brief period of time between it starting to rain and the production of the wet weather signs. Accordingly, it was not liable to a pupil who slipped and fell in the hall during that period The Claimant was a pupil at Ansford Community School in Castle Cary She fell in the main assembly hall of the school (she was then aged 15½) It was said that the Defendant had negligently allowed pupils to enter the hall via a fire exit from outside depositing water on the floor The Defendant denied the assertion saying that prefects were stationed there to prevent ingress At first instance, HHJ Bromilow found that the system was reasonable and dismissed the claim It was argued on appeal then when is started raining there was a delay in placing a sign on the doors and preventing pupils coming in through the fire exit An occupier is not required to take measures to absolutely prevent an accident occurring The system in place was reasonable and being operated reasonably It was unrealistic to say that the school ought to have had a system in place which would have mopped up the water before the Claimant slipped on it 19

20 Clark v Bourne Leisure [2011] EWCA Civ 753 Although a wheelchair user had mistakenly gone down steps in her wheelchair, causing her to fall out and sustain personal injuries, the premises were reasonably safe for wheelchair users as a ramp was provided and the steps were clearly visible to any wheelchair user taking reasonable care The Claimant, who was in a wheelchair, was in the Tavern bar at Seashore Holiday Park, Great Yarmouth The bar was on a split level. On one end was a ramp about 10 meters long and 1.5 meters wide. At the other end there were two steps The Claimant drove up the ramp. As she left she went the other way and drove down the steps sustaining serious injury The first step was wooden as was the rest of the raised area, with a rubber and silver nose The second step was a few feet further on and was carpeted with a silver edge At first instance it was held that the premises were not reasonably safe and found for the Claimant subject to a one third deduction On appeal it was said that it was incumbent upon the Judge to make his own assessment as to whether the steps were reasonably safe It was quite obvious and apparent that there was no ramp in place There was also an obvious difference in level As there was a ramp available for wheelchair users, the premises were reasonably safe The appeal therefore succeeded and the claim was dismissed 20

21 Geary v JD Wetherspoon [2011] EWHC 1506 (QB) Where a claimant had attempted to slide down the banisters in a public house and had fallen fracturing her spine the defendant owner of the premises could not be held liable for her injury as the claimant had voluntarily assumed the obvious risk inherent in sliding down the banisters The Claimant was drinking with work colleagues at the Union Rooms in Newcastle On the way out she slid down a long, sweeping banister landing on the marble floor She fractured her spine and was left tetraplegic The banister was lower than required by Building Regulations However, this was due to the listed status of the building There was evidence that customers had slid down the banister and sustained injury The Claimant appears to have been trying to recreate a scene from Mary Poppins Coulson J considered the authorities such as Tomlinson v Congleton [2004] 1 AC 46 There was no authority in which a Defendant had been found to owe a duty of care to protect a Claimant from his voluntary assumption of an obvious and inherent risk The Claimant freely chose to do something she knew to be dangerous In any event the Defendant had assumed no responsibility and therefore owed no duty The claim therefore failed 21

22 Kmiecic v Isaacs [2011] EWCA Civ 451 An occupier of premises where building work was being undertaken was not liable for personal injuries sustained by a casual worker on the premises as the occupier did not exercise control over access to or egress from the place of work for the purposes of the Construction (Health, Safety and Welfare) Regulations 1996 and the Work at Height Regulations The Claimant (K) was carrying out work as a casual labourer for a building contractor (S) K was working on the roof of N s garage when he fell from a ladder and sustained serious injuries. S had been uninsured and K commenced proceedings against N for damages. K alleged that N had withdrawn her permission for him and a co-worker to access the roof through a bedroom window and so K had then used a ladder instead. K alleged that under the Regulations (above) a duty was imposed on an occupier who exercised control over access to or egress from a place of work. The mere exercise of control as an occupier was not the same as an exercise of control over the way in which work was undertaken. Occupiers might have persons under their control who were not in their employment. However, in this case, K did not come under N s control simply because N had allowed K access through the window. An occupier of premises who sought to limit access to or egress from there did not incur an obligation. In relation to the issue of safety on construction sites, it was better to look at employers instead. 22