A personal injury claim in Chambers has just come to its conclusion (it is hoped) with the defendant’s successful appeal from a district judge to the circuit judge. The district judge had held the defendant county council liable for the claimant’s unusual highway tripping injury, but on appeal that decision was overturned.
The claimant had been walking home in the early hours on a Saturday night after a party. Needless to say, the district judge accepted his account of an abstemious evening in which he scarcely touched a drop. Being sober, he then walked home on a route he knew where there was a Victorian piece of iron work at knee height installed in the pavement at the entrance to the local common. It was the remains of an old kissing gate which had been used to keep livestock from wandering off the medieval common where there were grazing rights, and was now effectively a bar stretching across the whole width of the pavement, with space to go around it to the side. There were no streetlights nearby and our hero walked straight into the bar and fell face first towards the ground.
He sued the county council because it was the highway authority, but made no claim under the Highways Act 1980. His claim was for negligence only. The problem was that no-one knew who had installed the kissing gate many moons ago, who had modified it some time later or who was responsible for maintaining it now. No-one at county hall could be found who thought the council maintained it. But it was considered by the local worthies to be an interesting part of the local heritage.
The district judge found that the council was subject to a duty of care, having “assumed responsibility” by dint of carrying out routine maintenance inspections of the highway itself, ie because it knew of the presence of the iron structure. On appeal, the circuit judge pointed out that the postman probably also knew of its presence, but he hadn’t assumed any responsibility. No basis for a duty of care was discernible. Unlike the notorious case of Shine v LB Tower Hamlets (child leapfrogging over a wobbly iron bollard), the council had not installed the structure and were not liable of the obstruction.
So the moral of the story: carry a torch when wandering around heritage sights at night.