Tom Danter reports on the successful defence of a claim brought against a local authority after the claimant slipped on a wooden footbridge.
Readers may be aware of claims being successfully defended by utilising the defence in McGeown, where the claimant has alleged to have fallen and sustained injuries as a result of a defect in the footway or carriageway.
In the recent case of Clifford Warren Smith v Torfaen County Borough Council, where Dolmans represented the defendant authority, similar arguments were raised. However, this case did not involve a defect in the surface of the footway.
The claimant alleged that on 11 December 2011, he was walking across a wooden footbridge (which was owned by the defendant council), when he slipped and fell. As a result, the claimant alleged that he had sustained personal injuries and he sought to claim damages in respect of the same.
It was alleged that the defendant was in breach of Section 41 of the Highways Act 1980 and/or Section 2 of the Occupiers’ Liability Act 1957 and/or that it was negligent.
There were no real causation issues and it was considered likely that the claimant would prove that his accident occurred in the circumstances alleged.
The claimant was put to strict proof as to dangerousness and had not undertaken (or requested facilities to undertake) any slip resistance testing of the surface of the footbridge which was constructed from wooden slats.
The defendant argued that the Highways Act 1980 did not apply, given that the footbridge was not part of the adopted highway. If the Occupiers’ Liability Act 1957 applied in the alternative (as pleaded by the claimant), then the defendant argued that it had a defence in accordance with the decision in McGeown v Northern Ireland Housing Executive (1995) 1 AC 233.
McGeown – a brief reminder
It is worth reminding readers at this juncture that the claimant’s claim in McGeown failed as it was found that she was utilising a public right of way ‘as of right’ and not as a visitor in accordance with the 1957 Act. It should be remembered, however, that the defence in McGeown relates to alleged defects that have arisen due to non-feasance, rather than misfeasance. It is important, for example, to demonstrate that the alleged defect is not something that has been repaired previously.
The defence in McGeown was considered further in the more recent, and often quoted, case of Young v Merthyr Tydfil County Borough Council (2009) PIQR Page 23 (sometimes hailed as the ‘modern day McGeown’), in which Dolmans represented the defendant authority.
Counsel for the defendant in the current matter referred to the decisions in both McGeown and Young when summing up before the Trial Judge.
Section 36 of the Highways Act 1980
Counsel for the claimant argued that section 36 of the Highways Act 1980 applied and that the footbridge was a highway maintainable at the public expense as, according to his argument, it fell within one of the 6 subsections under section 36 (2) of the Act. These subsections are as follows:
(a) A highway constructed by a Highway Authority, otherwise than on behalf of some other person who is not a Highway Authority.
(b) A highway constructed by a Council within their own area, other than one in respect of which the local Highway Authority are satisfied that it has not been properly constructed, and a highway constructed by a Council outside their own area ….. being, in the latter case, a highway the liability to maintain which is ….. vested in the Council who are the local Highway Authority for the area in which the highway is situated.
(c) A highway that is a trunk road or a special road.
(d) A highway, being a footpath or bridleway, created in consequence of a Public Path Creation Order or a Public Path Diversion Order, or in consequence of an Order made by the Minister of Transport or the Secretary of State under Section 247 of the Town and Country Planning Act 1990, or by a competent Authority under section 257 of that Act, or dedicated in pursuance of a Public Path Creation Agreement.
(e) A highway, being a footpath or bridleway, created in consequence of a Rail Crossing Diversion Order, or of an Order made under Section 14 or 16 of the Harbours Act 1964, or of an Order made under Section 1 or 3 of the Transport and Works Act 1992.
(f) A highway, being a footpath, a bridleway, a restricted byway or a way over which the public have a right of way for vehicular and all other kinds of traffic, created in consequence of a Special Diversion Order or an SSSI Diversion Order.
Although the footbridge was not part of the adopted highway, it was the subject of a routine system of inspection (and maintenance if required) on a bi-annual cycle and was last inspected prior to the date of the claimant’s alleged accident on 14 September 2009 and 29 September 2011, when no issues were raised regarding the slipperiness of the surface of the footbridge.
As an asset owned by the defendant, asset inspections were also undertaken on a six-monthly basis, the last of which prior to the date of the claimant’s alleged accident was undertaken in October 2011. Again, no issues were raised regarding the surface of the bridge, particularly the slipperiness of the same.
In addition, the footbridge was subject to a reactive system of inspection (and maintenance if required), although there were no reported complaints and/or similar accidents during the 12-month period prior to the date of the claimant’s alleged accident.
The defendant called two inspectors to give the above evidence, who were also able to confirm that the footbridge was open for public use without hindrance and had been for well over 20 years.
It was also confirmed that the construction of the surface of the footbridge at the time of the claimant’s alleged accident had not been altered beforehand and there was no record of any previous repairs at the location of the claimant’s alleged accident to the best of the witnesses’ recollections.
One of the defendant’s witnesses advised, however, that he inspected the footbridge following the claimant’s alleged accident and that he did find the bridge to be slippery in areas at the time of his inspection (but not before or since), probably due to the unusual combination of the mild/wet winter of 2011/2012 and residue from the tree canopy above. As a matter of prudence, following the claimant’s alleged accident, he did request a quote for ‘decking strips’. However, these had not been fitted as the bridge subsequently required structural repairs (to the main beams), but was not deemed dangerous in any event.
Despite the failure by some of the claimant’s witnesses to attend Court, the Trial Judge was satisfied that the claimant’s accident had occurred as alleged.
The Trial Judge was content that the surface of the footbridge posed no danger when it was dry and that there were adequate handrails along both sides of the bridge. However, the claimant alleged that his accident occurred when the bridge was wet.
The Trial Judge accepted, however, that there was no defect in the surface of the footbridge and that the Highways Act 1980 did not apply. In particular, the Trial Judge found that the footbridge did not fall within any of the subsections under Section 36(2) of the Highways Act 1980. The Trial Judge was also assisted by a plan showing the extent of all adopted highways in the vicinity, which did not include the footbridge in question.
The Trial Judge then went onto consider the alleged breach of the Occupiers’ Liability Act 1957 and the decisions in both McGeown and Young. The Trial Judge reiterated that there was no evidence of any defect in the surface of the footbridge at the time of the claimant’s alleged accident and that any recorded issues with the footbridge post-dated the claimant’s alleged accident.
In any event, the Trial Judge accepted the defendant’s evidence that the claimant was using the bridge as of right and that he was not, therefore, a visitor at the time of his alleged accident. Hence, it was held that the Occupiers’ Liability Act 1957 did not apply and the claimant’s claim was dismissed.
The above decision again shows the potential power of McGeown and Young in cases where it is appropriate for the defendant to raise these decisions.
It also demonstrates the scope for raising the same in cases where the defendant is faced with claims that do not involve alleged defects in the surface of footways or carriageways.