Paul Singh v The City of Cardiff Council  EWCA 1499 (QB)
Duty of care - Highways Act 1980 - occupiers liability – breach of duty - causation
Queen’s Bench Division
Mr Justice Lewis
23 June 2017
A claim for damages for personal injury arising out of an accident on land owned by a local authority failed as the accident had not been caused by a breach of a duty under the Highways Act 1980 s.41, the Occupiers' Liability Act 1957 s.2 or breach of a common law duty.
The claimant was walking home in the early hours of the morning along a path that lead to a footbridge. At some stage he ceased to be on the path and went down into Llanishen Brook. He remained in the Brook overnight and was found the following morning. He sustained severe injuries.
The claimant’s case was that his injuries were caused by 1) the council’s failure to maintain the footpath; 2) a breach of duty under s2 Occupiers Liability Act 1957 or 3) common law negligence. The defendant denied liability.
It was accepted that the footpath approaching the bridge was maintainable at public expense, and that also the defendant owned the land adjacent to the footpath and between the footpath and the brook. Based on the claimant’s evidence the judge found it was likely that the claimant voluntarily left the footpath and stood on the ground adjacent, where he then lost his balance and slid down the slope.
Considering the issues, the judge concluded that any alleged defect in the highway did not cause the injury that the claimant suffered as he found as a matter of fact that the claimant voluntarily left the highway. Secondly, he found that when considering the council’s duty in relation to the adjoining land, it was relevant and helpful to consider the circumstances by which the footpath and adjacent land came to be used. The judge found that the purposes for which persons are invited or permitted to be present on the adjacent land is for purposes reasonably incidental to the footpath. He also considered it relevant that the footpath itself was wide, meaning that occasions where a person would be required to leave the footpath would be relatively few. In light of this, the judge concluded that the case did not fall within the scope of s2(2) of the 1957 Act and the claimant’s injuries were therefore not the result of any failure by the defendant.
Finally, he concluded that on the facts the highway authority had not created a hazard or introduced a danger by creating a footpath and footbridge and it was not the creation of the footpath itself that caused the injury. The claimant chose to leave the footpath and enter on to the adjacent land where thereafter he lost his footing. He concluded the claim in common law negligence must fail.
Finally, the judge considered the hypothetical scenario of if he had found the defendant liable. He concluded that if he had found the defendant liable, the claimant would have borne considerable responsibility for the incident as he chose to leave the footpath and had been drinking at the time so that his blood alcohol level was 2.5 times the legal limit for driving. It was therefore likely that his ability to maintain his footing was impaired.