Potential pitfalls for claimants throwing everything at defendants
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RGR v Rhondda Cynon Taf County Borough Council [2018]
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The above matter, in which Dolmans represented the Defendant Authority, illustrates the risks faced by Claimants who take the decision to run several different alleged breaches of statutory and common law duties presumably in the hope that at least one will find favour with the Trial Judge.
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Faced with strong arguments by the Defendant in response to such allegations, it sometimes falls upon Counsel for the Claimant to make concessions at a relatively late stage, as in this matter, thereby leaving the Claimant with a much reduced armoury at Trial.
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Facts of the matter
The Claimant alleged that on 24 May 2015, he was riding his bicycle along a cycle path, forming part of the National Cycle Network in Wales, when he was precluded from riding through a barrier on the cycle path due to debris on the floor. As a result, the Claimant alleged that he had to pass to the left of the barrier and, in the process, caught his finger on a protruding metal bracket that had previously been attached to a wooden fence that had since been removed.
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The Claimant alleged that he suffered an open dislocation injury to his right little finger and was thrown over the handlebars of his bicycle.
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Claimant’s allegations
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The Claimant alleged that the Authority had been negligent and was in breach of Section 41 of the Highways Act 1980 and/or Section 2 Occupiers Liability Act 1957. It was also alleged that the Defendant was guilty of nuisance
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Defendant’s arguments
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The Defendant Authority addressed the Claimant’s various allegations as follows:
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Highways Act 1980
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The Defendant Authority maintained that the barrier was a piece of street furniture. The Court of Appeal in Shine v London Borough of Tower Hamlets [2006] EWCA Civ 582 considered that where a complaint is about street furniture, then this is not a case that falls under Section 41 of the Highways Act 1980. This decision echoed the House of Lords in Gorringe v Calderdale Metropolitan BC [2004] 1WLR 1057, such that “it is only where the alleged liability arises out of a failure to maintain the highway that the Section 41(1) duty and the Section 58(1) defence come into play”.
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The Defendant Authority argued, therefore, that the Claimant had no cause of action pursuant to the Highways Act 1980.
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If there was any doubt about these arguments, then the Defendant Authority suggested that reference could be made to Goodes v East Sussex County Council [2000] 1 WLR 1356, where the duty to maintain is limited to the ‘fabric of the highway’ and not materials or objects on the highway.
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Occupiers’ Liability Act 1957
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The Defendant admitted that the cycle path itself was a highway maintainable at public expense. The Defendant Authority argued, therefore, that it could not occupy the highway for the purposes of the 1957 Act and, arguably, the Claimant was not a visitor for the purposes of the said Act.
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The Defendant Authority argued, therefore, that there could be no cause of action for breach of the 1957 Act as pleaded.
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Negligence
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It was argued, on behalf of the Defendant Authority, that a distinction has to be drawn in respect of liability by the Highway Authority for misfeasance and non-feasance. The Highway Authority would be liable for any negligent misfeasance, but there was no liability in law for non-feasance. It was argued, therefore, that there could be no freestanding duty on the Defendant Authority in respect of the barrier, whether in terms of inspection or maintenance. In Shine, the Court of Appeal examined the duty on the Defendant where it had a policy of inspecting bollards and putting them in a safe state if they were found insecure. In that case, the Defendant had inspected the area pre-accident and raised it for repair. Its liability in negligence arose from a failure to do what was intended by the Defendant to be done and what should have been done. The finding in this case was based on the facts and the Defendant’s evidence that the area should have been made secure before Mr Shine’s accident. It was not intended to extend the liability of Local Authorities in unusual and exorbitant ways.
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For these reasons, the Defendant Authority argued that it had not been negligent in any way
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Nuisance
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Again, the decision in Shine was relied upon by the Defendant Authority, where it was held that such issues of items on the highway are to be determined according to the law of negligence. In any event, it was argued that the Defendant Authority had not created the alleged nuisance, being the exposed bracket.
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Outcome
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Counsel for the Claimant conceded several issues at Trial, including that there was no sustainable case under either the Highways Act 1980 or the Occupiers’ Liability Act 1957 and there is nothing that the Defendant had done so as to create a nuisance.
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It, therefore, fell upon the Judge to make a decision based upon negligence only; factual causation having been proved.
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The Judge held that for the Defendant Authority to be found negligent, it had to be shown that there was a reasonably foreseeable hazard and that it caused injury. The Judge found that there was an injury on the bracket, as alleged. Although it was foreseeable that an injury could occur, the Judge considered that the Defendant Authority did not know about the alleged defect nor should have known about the same.
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The Claimant had argued that the location would have been visible to inspectors checking the adjacent main road, but the Judge found this to be speculative. In any event, the Judge considered it to be unreasonable to say that such an inspector is expected to look out for hazards in the vicinity. Hence, the Judge reiterated that the Defendant Authority had no actual or constructive knowledge of the alleged hazard.
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The Judge held that non-feasance is not enough to establish liability and, as there was no sustainable cause of action, dismissed the claim, ordering the Claimant to pay the Defendant’s costs, not to be enforced without further order of the Court given that this was a QOCS matter.
