London borough wins appeal over Whitechapel Market trip ruling

The background to the Court of Appeal case was that the claimant/respondent was 36 weeks pregnant when she tripped over metal poles protruding from an unattended trolley at a bus stop near Whitechapel Station while heading to a maternity ward tour.

The poles, belonging to an unidentified market trader, were not marked and extended across the footpath.

She suffered a serious ankle fracture but her unborn child was unharmed and she later gave birth to a healthy baby.

The claim proceeded on the assumption that the poles had belonged to or were the primary responsibility of an unidentified and unidentifiable market trader.

Tower Hamlets is the licensing authority for market traders, while Transport for London is the relevant highway authority.

The claimant had argued that Tower Hamlets as the authority with the responsibility for licensing and management of the street trading in the market, caused, permitted, suffered the existence of, adopted or otherwise failed to abate the public nuisance (a) by allowing the market to be run in such a way as would create this obstruction on the adjacent footpath, thereby posing a danger to the public; and/or (b) by failing to remove the poles or erect a warning drawing attention to their presence.

The claimant alleged that, as a result of this public nuisance, she suffered injury loss and damage.

She additionally or alternatively claimed her injuries were caused by negligence on the part of Tower Hamlets in that it failed to take reasonable care to ensure that the market was managed and run in such a way that would not create dangers or hazards to ordinary users of the adjacent footpath.

It was argued that the council owed a duty to take reasonable care to ensure that the street trading at the market was conducted in such a way that it would not create foreseeable dangers or hazards to ordinary users of the adjacent footpath such as the claimant.

The claimant submitted that her injury was caused as a result of a public nuisance for which Tower Hamlets was responsible.

Further or alternatively, the claimant argued that Tower Hamlets was liable to her in negligence.

In its defence, Tower Hamlets pleaded that while it was at all material times the licensing authority for the market, it did not operate the market: its primary responsibility was to grant street trading licences to stallholders, each of whom was required to carry public liability insurance.

Periodic inspections of the market were limited to the pitches within the market itself and not to the adjacent highways, it added.

Such inspections, together with its licensing terms and conditions were designed to ensure that its licensees traded in compliance with "street trading" as prescribed by the 1990 Act. The safe setting-up, maintenance and dismantling of the pitches was the responsibility of the relevant individual traders.

Tower Hamlets conceded that it was responsible for the licensing of the market and for some aspects of the management of the market; but it denied that it had any management or control responsibilities wider than those set out in its 2018 Street Trading Licence Conditions.

The council denied that it had caused or permitted a nuisance or failed to abate one, adding that the claim should have been directed to the relevant stallholder or stallholders.

The Deputy District Judge found for the claimant. He said the council’s ‘standard conditions’ clearly outlined a situation in which it assumed responsibility for the existence of the market and the rules (licence conditions) within which the traders operated.

Reviewing the evidence, the DDJ said the way the market operated "was squarely the responsibility of [Tower Hamlets]”. He also found that the Tower Hamlets was responsible for the licensing, management and control of the market and bore responsibility for waste abandoned in the market area.

The judge added that the council was responsible for ensuring that the market was managed and run in such a way that did not create a public nuisance on the adjacent footpath, and owed the claimant, as an ordinary and reasonable user of the adjacent highway, a duty of care not to run or allow the market to be run in such a way as to create a hazard on the adjacent footpath.

The DDJ held that the presence of the poles gave rise to a foreseeable risk of injury and that “The relationship between the claimant (as someone who had alighted a bus within meters of the unattended poles / trolley between two market stalls) and [Tower Hamlets] (the entity which had assumed responsibility for, and exercised considerable control over the market traders and their stalls) was sufficiently proximate so as to lead to the imposition of a duty of care."

The judge also concluded that the poles were a nuisance or a danger, and that they had been at the locus of the accident from at least 14:45 on the day of the accident, which occurred at 5 pm.

There had been a failure to properly supervise and monitor the market so as to ensure that it was run safely, the DDJ said. This had created a hazardous obstruction on the footpath.

There was also a failure to conduct adequate and sufficient inspections, a failure to carry out the necessary vigilant monitoring and a failure to keep the social spaces adjacent to the market obstruction-free. “As such, the defendant was permitting the market to be run in such a way as to create a public nuisance on the adjacent footpath,” the judge said.

The DDJ also concluded that Tower Hamlets had failed to detect and remove the obstruction (the scaffolding poles on the trolley) due to its failure to comply with SOPP 2017 [Tower Hamlets' 2017 Standard Operating Procedures and Processes for Market Officers] and its failure properly to supervise and monitor the market.

The judge concluded: “Therefore, in my judgment, by suffering or permitting the components of a market stall to be left in such a way as to pose a hazard to ordinary reasonable users of the footpath, the defendant failed in the duty of care that it owed to the claimant, … ."

The DDJ, however, gave permission to Tower Hamlets to advance four grounds of appeal:

• Ground 1: the DDJ was wrong to identify and impose any duty of care on the defendant in respect of the poles left on the highway by the third-party market trader:
  1. The DDJ was wrong to find that the council's regulatory control of the market traders was sufficient to impose a duty of care.
  2. The DDJ was wrong to find that the council had assumed a responsibility to the claimant.
  3. The DDJ was wrong to find that the council was legally able to continue the nuisance created by the third-party market trader.
  4. The DDJ was wrong to impose a novel duty of care.
• Ground 2: the DDJ was wrong to find that the poles had been left on the highway since 14:45.
• Ground 3: even if the DDJ was right to find a duty, he was wrong to find that the council should have ensured that there were no obstructions in and around the market once in each of the time periods.
• Ground 4: even if the DDJ was right to find a duty, he was wrong to find that council was in causative breach of duty on the standard of care that he set.

Lord Justice Stuart-Smith, with whom Lady Justice Yip and Lord Justice Bean agreed, allowed the appeal on grounds 1, 2 and 4.

On Ground 1, Lord Justice Stuart-Smith noted the Supreme Court’s comments in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33, [2025] AC 1046 to the effect that: "As a general rule, a person has no common law duty to protect another person from harm or to take care to do so: liability can generally arise only if a person acts in a way which makes another worse off as a result. In recent years this distinction has taken on added significance because it is now firmly established (or re-established) that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals. Many public authorities - notably, protective and rescue services such as the police force and fire brigade – have statutory powers and duties to protect the public from harm. But failure to do so, however blameworthy, does not make the authority liable in the tort of negligence to pay compensation to an injured person unless, applying the same principles, a private individual would have been so liable. That means that to recover such compensation a claimant generally needs to show that the public authority did not just fail to protect the claimant from harm but actually caused harm to the claimant."

The Court of Appeal judge said that, subject to two possible exceptions, it was “plain that this case falls within the general rule”.

Turning to the first exception, Lord Justice Stuart-Smith considered whether Tower Hamlets had assumed a responsibility to protect the claimant from the harm that she suffered when she fell.

He found that there was nothing approaching a relationship such as those found in the cases of Phelps or Barrett. Nor was there any meaningful sense in which it could be said that the council had “assumed responsibility” for the safety of the claimant.

“In my judgment, this case falls on the same side of the line as Poole and Tindall and does not satisfy the "assumption of responsibility" exception.”

Lord Justice Stuart Smith also found that Tower Hamlets did not have a special level of control over the errant market trader such as to qualify as an exception to the general rule.

The only control that Tower Hamlets had over the market traders was the powers of revocation and enforcement in the event of failure to comply with their licence conditions, he said.

“For these reasons I consider that this case falls within the general rule. What is complained of is a failure to confer a benefit on [the claimant], in respect of which Tower Hamlets owed her no common law duty of care. It follows that her claim in negligence should have been dismissed,” the Court of Appeal judge said.

The appeal on ground 2 was also allowed, with the Court of Appeal holding that there was no evidence that could justify the DDJ in finding that the poles and trolley had been in their accident position since 2.45 pm or any precise time.

Ground 3 was dismissed after brief consideration in light of the conclusion that Tower Hamlets did not owe the claimant a duty of care, rendering a decision unnecessary.

Finally, assuming that Tower Hamlets owed the claimant a private law duty of care to inspect the area once between 2.45 and 6.00 pm, the claimant could not prove that any breach of that duty caused her accident [at 5 pm]. The Court of Appeal therefore also allowed the appeal on Ground 4.

Lord Justice Stuart-Smith also concluded that the claim in nuisance failed.

The Court of Appeal judge said: “….[Whatever] the terms of the SOPP, this is wholly unrealistic for a borough council with limited resources whose market officers could not possibly marshal every aspect of every market trader's conduct.

“What is being contended for is effectively a guarantee that Tower Hamlets will prevent any breach of the market traders' licence conditions. There is in my judgment no conceivable justification for imposing such an unrealistic, unreasonable, and unenforceable obligation upon a borough council acting pursuant to its powers under the 1990 Act. The mere fact that the licence conditions, the SOPP, the WMAP [the Whitechapel Market Plan] and levelling-up application recognise that infractions of the licence conditions may occur on occasion does not mean or imply that they are permitted.”

The order of the Deputy District Judge was set aside.

Harry Rodd