Between Blackpool rock and a highway hard place

08 Apr 2019

BLM’s Paul Murphy has successfully represented Blackpool Council in the case of Harrison v Blackpool Council.  Had the claimant been successful, it could have led to the council having to consider redesigning its popular new promenade area at very considerable cost.

Unusually in this case, following a trip on a kerb, the claimant did not allege breach of section 41 of the Highways Act 1980, but alleged that the design and construction of the newly refurbished area were inherently dangerous. Here, Paul details the case and its judgment.

Facts of the case
The claimant issued proceedings for damages for personal injury and loss following an accident on 31 October 2015, when she tripped on a kerb edge on the Promenade at Blackpool.

The location had previously comprised a carriageway with two lanes of traffic in each direction controlled by several sets of traffic lights at junctions and Pelican crossings with vehicles and pedestrians separated by stretches of guardrail. The area had a poor traffic safety record and was aesthetically displeasing.

The redevelopment by Blackpool Council was based on the concept of shared space creating large, wide areas for pedestrians with wide zebra crossings and an area for vehicles. It also had to consider an area for horse drawn carriages. Traditional kerbs to delineate the carriageway and footway were abandoned in favour of a flush double kerb with a chamfered edge and height of around 25mm.

The claim
The claimant did not allege breach of section 41 of the Highways Act 1980. She argued that:

  1. The defendant had negligently exercised its powers to improve the highway under section 62 of the Highways Act 1980
  2. The raised kerb edge constituted a nuisance created and maintained by the defendant
  3. The difference in level created a trap for pedestrians
  4. The defendant owed to the claimant a common duty of care

The claimant pleaded that the difference in level was hazardous in circumstances where it was small enough to be missed by pedestrians, particularly after dark but comfortably large enough to cause a tripping hazard.

The claimant’s account of the incident was straight forward and she was likely to have been able to establish that the injury occurred as alleged.

The defence
By its defence, the council denied:

  1. That it owed to the claimant a freestanding common duty of care, the claimant having used the highway as of right absent any allegation of disrepair under section 41
  2. The mere assertion of a careless exercise of a statutory power did not establish a breach of duty at common law
  3. That the difference in level was marked by materials of different colour and texture
  4. That the chamfered edge provided guidance to motorist and pedestrians of straying onto the pedestrian/vehicle area.

Blackpool Council relied on lay witness evidence from its senior highways inspector who gave evidence of the defendant’s maintenance policy and its operational delivery. Although the claimant did not allege that the area was in a state of disrepair, the defendant’s evidence was of a regular system of inspection and maintenance of the area and that the chamfered kerb edge was not recognised as being dangerous. The inspector also gave evidence that there had been no complaints received about the area (despite the claimant’s assertion to the contrary) and that the defendant had received only one previous similar claim. This previous claim had to be viewed in the context of the huge numbers of visitors to the area each year reported by the defendant’s Tourism, Economy & Resources Scrutiny Committee at 16.82 million in 2014 with 81% of visitors visiting the Promenade in 2017. The inspector gave evidence that there was satisfactory street lighting.

The defendant also relied on the evidence of its highway network & projects manager who had knowledge of the background to the development, the concept of shared space construction projects generally and their application in other boroughs.

Expert evidence relied on during trial

The court agreed that expert engineering evidence would be necessary to resolve the claim and the parties jointly instructed a consulting engineer with experience of civil engineering projects. The engineer concluded:

  1. The design was within the relevant guidance and regulations
  2. Dropped vehicle kerbs often have a similar height difference as the chamfered kerb
  3. The contrast in colour and texture of the surface at the locus was acceptable
  4. The defendant’s desire to create a form of shared space was, although regarded as controversial by some designers, by no means unusual and that it had been successfully introduced elsewhere

The expert concluded that the redevelopment carried with it an increased risk of accidents largely associated with a lack of familiarity but that this risk would be transient and more than offset by the long term benefits of the scheme.  He went on to say that the design was in accordance with relevant guidance and that the designers could not be criticised. The scheme is acknowledged to be innovative but the defendant could not be criticised for trying to improve the experience of users of the area.

Expert conclusion leads to discontinuance of claim
The claimant subsequently discontinued the claim. The Highways Act 1980 contains a number of statutory powers and most claims brought against the highway authority tend to arise from a decision not to exercise a statutory power as in Goringe v Calderdale BC. Whilst there is an acknowledged risk of a pedestrian losing his footing due to the difference in level created by the chamfered kerb, or indeed any difference in level such risks are not unreasonable and the re-design of the Promenade represented an overall improvement.

Clearly, if the court had found the design and construction of the Promenade to be dangerous, this could have had serious consequences for the council and for other local authorities that have invested in similar redevelopment schemes across the UK.

BLM's Paul Murphy represented Blackpool Council in this case.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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