Robinson v North Yorkshire CC and Richmondshire DC
BLM has successfully defended a claim against a local authority brought by a pedestrian who had fallen from the top of a retaining wall between two highways at different levels and suffered life-changing spinal injuries.
On 31 March 2012, the claimant was part of a stag-do that went by coach to Doncaster Races, then called in at Richmond on the way back home. He had been drinking heavily during the day – after the accident, his blood alcohol was virtually four times the drink-drive limit.
The claimant’s evidence was that towards the end of the night, he went to find the coach but it had moved, so he walked around looking for it. Millgate, the street along which he walked, split into two at a bend: on the left, it carried on down the hill quite steeply, while on the right there was a short cul-de-sac (Castle Terrace) which went past a few houses before reaching a footpath around the castle. A retaining wall supported the cul-de-sac, which grew to reach a height of 2.5m above Millgate.
On the left hand side of Castle Terrace, along some but not all of the retaining wall, there was a railing, installed in about 2001 by the highways authority, North Yorkshire County Council. About six feet from the end of the railing, there were some steps leading from Castle Terrace to an unfenced pathway along the top of the retaining wall down Millgate. The steps and pathway, which were owned by our client, Richmondshire District Council, had been in place for over 100 years, according to historic photographs. In recent years, Richmondshire District Council had been content to discourage use by letting it become overgrown, rather than take active steps to close it down.
The claimant walked along Castle Terrace with his left hand on the railing. When he reached its end, he failed to appreciate that the railing was no longer present and fell 2.5m onto Millgate, suffering severe spinal injuries.
The case against North Yorkshire CC was that it had created a trap by erecting a railing that finished alongside a 2.5m drop. Someone not knowing the area or in need of support (such as the elderly or a pregnant woman) could easily use and follow the railing and go off the edge as a result. It would have cost little to extend the coverage by the railing and any sensible risk assessment would have identified the risk of injury through falling from the end of the fence.
The case against Richmondshire District Council was that they should have co-operated with North Yorkshire CC when the railing was installed (or thereafter) to close up the steps and pathway to allow an unbroken fence to be built along the highway. The steps and pathway were little used and unsafe, so there was no reason to keep them open, particularly when the price of keeping them open was that it prevented a fence protecting users of the highway extending further at this point.
Both defendants argued there was no foreseeable risk of injury against which precautions were necessary, given in particular the lack of any previous accidents, the obvious risk of falling, the lighting in the area, and the attention that could reasonably be expected from pedestrians.
HHJ Gargan said that the claimant’s behaviour was very significantly affected by the amount he had had to drink. He found the street light was working and so there was sufficient light for any reasonable pedestrian to see the drop and where the fence came to an end. The claimant had not seen this because he was extremely drunk and was relying on the fence for guidance and support. No one had raised safety issues about the fence, including an active local councillor, nor had there been any other accidents of this nature.
The claim against North Yorkshire CC failed because the danger at this point was not caused by the erection of the barrier or by the fact that it ended, but by the 2.5m drop to the road below. The railing was not a trap or enticement because there was no serious risk of injury since the drop was obvious by day and by night, anyone relying on the barrier would see the drop, and the end point was obvious. So North Yorkshire CC had not owed a duty of care to the claimant in installing the railing, and in any event its decision to install the railing only to the extent that it had done was not negligent.
The claim against Richmondshire District Council also failed. When Richmondshire District Council was neither the highway authority or occupier of the land from which the claimant fell, there was no good reason for extending a duty of care. There was no obligation on Richmondshire District Council to make a positive offer to stop up the steps/pathway and to encourage North Yorkshire CC to build a fence on the highway, which was for North Yorkshire CC to make decisions about in any event. Furthermore the duty would not be more extensive than the duty that an occupier would owe, and as there was no sufficiently significant risk of injury there would have been no breach of an OLA duty here.
Had liability been established, the judge said that he would have assessed contributory negligence at 85% because the claimant had rendered himself unable to appreciate the ordinary features of his surrounding environment.
What this means for you
This is a useful example of the principle that a risk of severe injury is not necessarily enough to say that the risk of injury is sufficiently foreseeable to make a defendant liable for not guarding against it. It confirms the limited scope for highways authorities to be liable in negligence for creating a danger, and that claimants complaining about not being protected from an obvious danger – particularly those to whom the danger is not obvious because of alcohol – will find it very difficult to succeed.
The finding of contributory negligence at 85% continues the theme of other recent cases that those who fail to take care for their own safety (and particularly those who are so drunk as to be unaware of their surroundings) will face a substantial reduction in their damages.