Robinson v North Yorkshire CC and Richmondshire DC
Tim Petts, instructed by Nicholas Thorne of BLM’s Manchester office, has successfully defended a claim against a district council brought by a pedestrian who fell from the top of a retaining wall between two adjacent highways at different heights, suffering life-changing spinal injuries. The judge rejected the claim that either their client RDC (who owned some land nearby over which there is a footpath) or NYCC (the highway authority, which was separately represented) owed C a duty of care to guard against the risk of him falling at night from the upper to the lower highway in circumstances where the judge found that the accident happened because C was unable to appreciate the ordinary features of the surrounding environment because he was very significantly affected by alcohol.
Richmond is an historic market town in North Yorkshire on a hill above the River Swale. Dominated by the castle at its centre, its streets are often narrow and steep and its Georgian architecture means that much of the town is within a conservation area. It has a large tourist trade, and the nearby garrison at Catterick also keeps the town busy.
On 31st March 2012, C 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, which happened at about 11.30pm, his blood alcohol was just under four times the drink-drive limit. The stag party dispersed into smaller groups after arriving, and C’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. Castle Terrace did not have a pavement, which was not unusual in the area. 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 (NYCC). 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 assumed to be owned by the district council (RDC), had been in place for over 100 years, according to historic photographs. There was some evidence that the path was still used even though some local residents said that they regarded it as unsafe. In recent years, RDC had been content to discourage use by letting it become overgrown without taking active steps to close down the path.
C 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 in reaching for where he thought the railing would be, he fell 2.5m onto Millgate, suffering severe spinal injuries. It was common ground that if the street light was working then the area was well-lit, but C said that the light was not working (albeit he had not said this to the police or in his witness statement for proceedings) which was why he had not appreciated the end of the railing or the drop.
The liability-only trial took place at Newcastle CC over 3 days before HHJ Gargan, and judgment was given on 1st February 2017.
The case against NYCC narrowed over time and in the end the case presented by leading and junior counsel for C was that NYCC 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), it was said, could easily use and follow the railing and go off the edge as a result. It was foreseeable too that someone like C, a visitor to Richmond who had been drinking, would have such an accident. 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 RDC also narrowed over time, to leave an allegation that RDC should have co-operated with NYCC 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 to reach the fencing along the footpath. 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.
NYCC (represented by leading counsel) argued that the fence had been built in 2001 because the retaining wall and the flagstones on top were being damaged over part of its length by vehicle movements on Castle Terrace. It was said that the railing was installed to prevent further damage from vehicles going onto the flagstones, and also to provide a visual delineation of the edge to help prevent cars going over. NYCC denied that pedestrian safety had been, or should have been, a factor. There had been no trap created – the only danger was the drop, which was an obvious one, not created by NYCC. The fence provided protection over part of the drop but the highway authority had no duty to provide protection over all of the drop.
RDC, represented by Tim Petts and BLM, said as it was neither the highway authority nor the occupier of the point from where C fell (it being trite law that OLA duties do not apply to highways) there was no basis for RDC being liable based on its occupation of the nearby steps and path which C had never reached. There was no previous case suggesting that an occupier of land owed a duty to users of the highway such that they should prevent access to their land in order to reduce the risk of someone being injured on the highway, and such an extension of liability would not be fair, just and reasonable. Furthermore, there was no need to block off the steps and pathway: they had not caused any accidents, and while RDC discouraged use by letting the path get overgrown, the presence of such historic features was part of the character of the town and it would be disproportionate to decommission it.
Both defendants argued, by reference to authorities such as Tomlinson v Congleton (HL, the modern starting point for OLA cases), Tacagni v Penwith DC (CA, one of Tim Petts’s cases, on very similar facts) and Edwards v Sutton LBC (CA, a recent decision on OLA claims), that 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 C’s consumption of alcohol made his memory of events less reliable, and his behaviour was very significantly affected by the amount he had had to drink. 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. C had not seen this because he was extremely drunk and was relying on the fence for guidance and support. NYCC’s evidence as to why the railing had been erected at all, and why only along part of the top of the retaining wall, was accepted. 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 NYCC 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 (albeit injury, if sustained, was likely to be serious) 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 NYCC had not owed a duty of care to C 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 judge accepting the reasons given by NYCC.
The claim against RDC also failed. When RDC was neither the highway authority or occupier of the land from which C fell, there was no good reason for extending a duty of care. There was no obligation on RDC to make a positive offer to stop up the steps/pathway and to encourage NYCC to build a fence on the highway, which was for NYCC 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 C had rendered himself unable to appreciate the ordinary features of his surrounding environment.
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.