Public liabiliy claims

Public liability claims

Steven Conway

Programme

• handling occupiers’ liability claims

• handling trespassers claims

• handling highways claims

• the cases you need to know

Handling occupiers’ liability claims• Occupiers’ Liability Act 1957

• Occupiers’ Liability Act 1984

Occupiers’ Liability Act 1957

• extent of occupier’s duty – s.2(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”

Common duty of care – s2(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”

Occupiers’ Liability Act 1957

• 3 questions to consider:

– who is an occupier under the Act?

– who is a visitor?

– what duty is owed by the occupier?

Who is an occupier?

• no definition in the Act

• a question of control

Wheat v Lacon & Co Ltd (1966)

what about landlords?

• can there be more than one occupier?

Furmedge v Chester-Le-Street DC & Brouhaha & Agis (2011)

• Dreamspace V

Who is a visitor?

• a duty is owed to all lawful visitors:

– with express or implied permission

Harvey v Plymouth City Council (2010)

– by contractual right

– in exercise of a non-contractual right conferred by law

What duty is owed by the occupier?- Section 2(3)(a)• an occupier must be prepared for children to be

less careful than adults

Bourne Leisure Ltd v Marsden (2009)

What duty is owed by the occupier?- Section 2(3)(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

Hughes v Midnight Theatre Co (1998)

What duty is owed by the occupier?- Section 2(4)(a)• a warning may absolve an occupier from liability

if, in all the circumstances it was enough to enable the visitor to be reasonably safe

Rhind v Astbury Water Park (2003)

What duty is owed by the occupier?- Section 2(4)(b)• an occupier may avoid liability for the negligence

of an independent contractor if it was reasonable to entrust the work to that contractor and he had taken such steps as were reasonabe to satisfy himself that the contractor was competent and that the work had been properly done

Gwilliam v West Hertfordshire Hopital NHS Trust (2002)

What duty is owed by the occupier?- Section 2(5)• no obligation to a visitor in respect of risks

willingly accepted by the visitor

Geary v JD Weatherspoon (2011)

Section 2(6)

• 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

McGeown v Northern Ireland Housing Executive (1994)

Public rights of way

Handling trespassers claims

• Occupiers’ Liability Act 1984

“whether any duty is owed by an 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” section 1(a)

The Occupiers’ Liability Act 1984• the same 3 questions need to be considered:

– who is an occupier?

– when is a duty owed (a duty is not automatically owed to a trespasser)?

– what duty is owed?

Who is an occupier?

• the persons who are to be treated as an occupier of any premises are any person who owes the duty referred to in section 2 Occupiers’ Liability Act 1957

When is a duty owed?

Section 1(3) a duty is owed where the occupier:

(a) is aware of the danger or has reasonable grounds to believeit exists;

(b) knows or has reasonable grounds to believe that the other is in the vicinity of the danger … or may come in to the vicinity of the danger; 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

Tomlinson v Congleton Borough Council (2003)

• Brereton Heath Local Nature Reserve, Congleton

Tomlinson v Congleton Borough Council (2003)

'I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or dive in pools or lakes that is their affair. Of course a landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions…... but the law does not require him to do so'

Lord Hoffman

What duty is owed?

• Section 1(4) defines the duty as:

“…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.”

Possible defence…

• Section 1(5): warnings

“any duty owed … may be discharged by taking such steps as are reasonable … to give warning of the danger concerned or to discourage persons from incurring the risk”

Possible defence…

• Section 1(6): risks willingly accepted

“no duty is owed … to any person in respect of risks willingly accepted … by that person”

Ratcliffe v McConnell (1999)

Handling highways claims

What is a highway?

• section 328 HA 1980 – “highway means the whole or part of a highway other than a ferry or waterway”, and includes bridges and tunnels which the highway passes over/through

• common law definition - a public right to pass over a defined route at all times of the year without hindrance

Creation of highways

• statute• common law

– public use for 20 years gives rise to a rebuttable presumption that a way is a highway (see s31 Highways Act 1980)

– use by the public and duration of use are both of value but not conclusive

– repair of the way by a highway authority is strong evidence of a public way (and therefore a highway)

– if a Court deems a way is a highway, there is a risk that an inference may be made that the highway is “highway maintainable at public expense”

What is a highway maintainable at public expense?• if a local/highway authority ever built the

highway, it is probably maintainable at public expense, (whether it did so by exercising highway powers or not)

• s36(6) – Councils are obliged to keep a list of streets which are highways maintainable at public expense (the magic list)

• be wary – the list is not definitive!

Gulliksen v Pembrokeshire County Council [2003]

• route not on the ‘definitive list’• highway constructed by the Council under

Part V of the Housing Act 1957• path therefore highway maintainable at

public expense

Ley v Devon County Council, Dobbs J, 28th February 2007

Is the path a highway?

Ley v Devon County Council [2007]

• Remember the definition of a highway – there must be a public right to pass over a defined route

• Route deemed to be private property as there was a “residents only” sign

• The sign was sufficiently detailed to negative any deemed dedication

• The route was not a highway• If it isn’t a highway is there a risk that the Occupiers’

Liability Act 1957 may apply?

Section 41(1) duty

“the Authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty to maintain the highway”

Meaning of “maintain”

• “A duty to repair and keep in repair” –

Gorringe v Calderdale MBC

“maintain the highway”

Valentine v Transport for London [2010]

• Fatal accident caused by accumulation of grit • loose surface-lying material could not be part of the fabric of

the road • Claim -v- TfL struck out• However, the claim against the local authority would not be

struck out. It was arguable that the cleaning of the road, with the exception of the sliver, had created a trap. That would be an alleged positive negligent act. Further, the case pleaded left it open for V to claim that the sweeper had pushed the grit onto the sliver, which would be a genuine case of a sin of commission.

What must the Claimant prove to demonstrate a breach of duty?Mills v Barnsley MBC (1992)

• that the highway was dangerous in the sense that… danger may reasonably have been anticipated from its use by the public – each case will turn on its own facts

• that the dangerous condition was created by a failure to maintain or repair

• that the injury resulted from such a failure

Is the defect dangerous?

Meggs v Liverpool Corporation [1968]

“it seems to me, using ordinary knowledge of pavements, that everyone must take account of the fact that there may be unevenness here and there. There may be a ridge of half an inch or three-quarters of an inch occasionally, but that is not the sort of thing which makes it dangerous or not reasonably safe.”

Lord Denning

James v Preseli Pembrokeshire DC (1992)

• claimant must show that the particular spot where he tripped was dangerous

• it was irrelevant that other spots were dangerous or that the area needed resurfacing

Devon County Council v TR (2013)

• accident resulted from the dangerous state of a stretch of road rather than a particular spot;

• court held that it was material to consider whether the condition of the stretch of road was dangerous rather than a single location; and then if so

• whether that dangerous condition was created by a failure to maintain or repair

The Statutory Defence – s.58

• the burden of proof is on the Highway Authority to demonstrate that it:

– “has 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.”

The Court will have regard to:

• the character of the highway, and the traffic which was reasonably expected to use it

• the standard of maintenance appropriate for a highway of that character and the state of repair which a reasonable person would have expected to find – how does it compare to the Highway Authority’s Code of Practice?

• whether the Highway Authority knew or could reasonably have been expected to know of the likely danger to users of the highway

• what warning notices were displayed if a repair was not reasonable at the time

Reasonable inspection

Day v Suffolk County Council [2007]

• Visual inspections by a single driver inadequate

• Policies should state the method of inspection

Reasonable inspections

Simson v London Borough of Islington [2013]

• Dispute as to accident location – Judge found it happened on the kerb

• Kerb obscured by parked cars – defect not visible upon inspection

• D relied upon s58.• Significant rutting in carriageway should have led to

further investigation• “Whether the Highway Authority knew, or could

reasonably be expected to know, that the condition of the highway … was likely to cause danger”

Is there a duty to erect road signs? Gorringe v. Calderdale MBC [2004]

Gorringe v. Calderdale MBC [2004]• C drove over crest of hill too fast and collided

with a bus• C claimed failure to install adequate signage• Duty under s41 has a fairly narrow scope• Duty under s39 Road Traffic Act 1988 –

measures to promote road safety • No action for breach of statutory duty under

s39• Very unusual for common law duty to exist

More Gorringe

"Although motorists are not entitled to be forewarned of the ordinary hazards of highway use, plainly they must not be trapped into danger. If, for example, an authority were to signal a one-way street but omit to put "No Entry" signs at the other end…… Such cases, however, may be expected to be few and far between…”

Gorringe v Calderdale

Negligent exercise of a statutory power

Yetkin v Newham LBC (2010)

• Y was using a pedestrian crossing where the view was obstructed by shrubs planted by N

• the shrubs had been allowed to grow thick and tall

• she crossed into the road and was knocked down by a car

held

• N owed a duty of care to all road users to use reasonable care when exercising its powers

• planting the shrubs was a reasonable exercise of its statutory powers under s96 AH 1980

• allowing the shrubs to grow and obscure the view of those using the crossing was a positive act, a negligent exercise of N’s powers

• N found to have breached its duty of care to Y

Street furniture

Matthew Shine v Tower Hamlets [2007]

• Claimant leapt a bollard, it wobbled and he fell and suffered injury

• section 41 duty did not apply to street furniture such as the bollard (this would also include Utility apparatus that did not constitute part of the highway – e.g. Utility marker posts)

• Bollard erected under s66 HA 1980• TH were found negligent as they knew the bollard was

defective

Flooding on the highway

Burnside v Emerson (1968)

• driver entered a dip in the road and encountered a pool of storm water

• storm water present due to :– dip created by the HA – failure to ensure gullies capable of draining

water from the carriageway– failure to keep a ditch cleared out

held

• repair and maintenance does include providing an adequate system of drainage for the road

• “when there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of the danger for a short time is no evidence of a failure to maintain”

three stage test

• the claimant must show that the road was in such a condition as to be dangerous to traffic

• the claimant must prove that its dangerous condition was due to a failure to maintain (noting a distinction between permanent and transient dangers)

• if there was a failure to maintain, a highway authority would be found liable for damage caused by their failure unless it could exercise its s58 Defence

Department of Transport v Mott Macdonald & Others (2006)• highway authority settled claims due to water

on the highway caused by drains blocked by silt, debris and vegetation

• sought recovery of its outlay from maintaining agents

• at first instance, judge held that there was no liability in any event as responsibility solely related to the road surface

held

• Burnside v Emerson remained good law• “an effective drainage system is an intrinsic part

of a modern road, and like any part of the road it needs to be properly maintained”

• “the surface is to be treated as one part of what is to be maintained, which is the “structure and fabric of the roadway”

• highway authority held to be liable to the original claimants for failing to maintain the drains

Snow and ice – s.41(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”

• Rhiannon Pace –v- The City and County of Swansea 2007.

• Winter Maintenance Programme - system of prioritising and dealing with snow and ice

• the burden of proof will be on the Highway Authority

Contractors & undertakers

• New Roads and Street Works Act 1991

• Nolan v Merseyside [1982] – apportionment of liability

• Reid v British Telecommunications Plc [1987] – reliance upon inspections

• contractual indemnities between highway authority and contractor for inspection, maintenance and repair of highways

Can you deviate from the Code of Practice?

Wilkinson v City of York [2011]

• council deviated from the Code for financial grounds• held:- Section 58 was designed to afford a defence to

a claim for damages against a Highway Authority which was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users, not an authority which decided that it was preferable to allocate its resources in other directions

Devon County Council v TR (2013) • highway inspected at six-monthly intervals (less

frequent than suggested in the Code of Practice – one month)

• the Code of Practice provides that where local authorities adopt policies, procedures or standards which differ from the Code, reasons need to be identified.

• there was no evidence that the departure was the subject of proper evidence-based consideration.

• The Code of Practice is not statutory, it is no more than evidence of good practice.

Questions?

Steven Conway

t: 0207 337 1037e:

[email protected]

Browne Jacobson LLP77 Gracechurch StreetLondonEC3V 0AS