The Honourable Mr Justice Lewis :
- This is a claim for damages arising out of an incident on land between Fishguard Road and Trenchard Drive, Llanishen in Cardiff. The claimant, Mr Paul Singh, was walking home in the early hours of 10 December 2011 along a path that lead to a footbridge over Llanishen Brook. At some stage, he ceased to be on the path and went down into Llanishen Brook. He remained in the brook overnight and was found the following morning. He sustained severe injuries. He claims that the injuries were caused (1) by a breach of a duty owed by the defendant, Cardiff City Council, under section 41 of the Highways Act 1980 ("the 1980 Act") to maintain the footpath (2) a breach of the duty owed by the defendant under section 2 of the Occupier's Liability Act 1957 ("the 1957 Act") or (3) common law negligence on the part of the defendant. The defendant denies liability. A trial of the issue of liability was ordered.
- The hearing took place between 7 and 12 June 2017. For the claimant, I heard evidence from the claimant, Mr Singh, Mr Carlyon (who was with the claimant in the early part of the evening), Mr Michael Donnelly and his daughter Ms Rebecca Donnelly (who live near the area where the incident occurred) Mr Paul Timothy (who went to the brook early in the morning of 10 December 2011 after being told that there was a person lying there) and Ms Maria Mullane (formerly a detective constable who had investigated the incident). For the defendant, I heard evidence from Philip Rowlands, a land services officer in the defendant's park services department, Mr Samir Misbah, a highway claims officer with the defendant, and Mr Paul Dawes and an electrical officer with the defendant. I had a witness statement made by Ms Debbie Bolwell, a technical support manager for the defendant's park department. Ms Bolwell was unwell and unable to attend court. I admitted her evidence as hearsay, the appropriate notice having been served under the Civil Evidence Acct 1968, but in assessing the weight to be given to that evidence I bear in mind that there was no cross-examination of her on the contents of her statement.
- I also had reports, and a joint statement, from two expert witness, both of whom gave evidence, Mr Adrian Runacres for the claimant and Mr Michael Hopwood for the defendant. Mr Runacres undertakes investigations and provides risk management advice to the transport sector and specialises in highway maintenance, collision reconstruction, meterology and micro-climatology matters. Mr Hopwood is an highway engineer and undertakes amongst other things, investigations of highway engineering matters including accidents on highways. I also had reports from a meteorological expert (Mr Noel Dale instructed by the defendant), a senior forensic meteorologist (Dr Richard Wild instructed by the claimant) and a joint statement from both. I also had reports, and a joint statement from Dr Tabener, a consultant forensic pharmacologist, and Dr Ronald Denney a forensic scientist and scientific consultant. I also had reports from two neurological experts and answers to questions put to them. Neither party relied upon the neurological evidence and I found that it did not assist in resolving the factual issues that arose in the case. Admissions of fact were also made.
- The incident occurred on an area of land between Fishguard Road and Trenchard Drive in Llanishen in Cardiff. A footpath has been constructed on part of the land leading from Fishguard Road. The footpath goes over a footbridge over Llanishen Brook and leads to Trenchard Drive on the other side of the brook. The footbridge is two metres above the stream. There are two six foot sections of guard rail on the bridge. To the left of the footbridge, on the Fishguard Road side, is a wall, referred to in evidence as a wing wall and, at approximately right angles to that wall, another wall referred to as a retaining wall. The wing wall starts at a height of 2 metres above the level of the river bed and slopes down from the bridge to the retaining wall. The point where the wing wall and the retaining wall meet is 1. 6 metres above the level of the river bed. (These measurements were taken by Mr Runacres and I accept that they are accurate). The inference is that the wing wall slopes down from the bridge by approximately 0.4 metes to where it meets the retaining wall.
- The footpath approaching the footbridge is a highway maintainable at public expense. The defendant owns the land upon which the footpath is constructed and is the owner and occupier of the land adjacent to the footpath between the footpath and the brook. There are housing estates on each side of the footbridge. The evidence of the claimant and witnesses who used the footpath, and the Council officers who gave evidence, which I accept, is that the footpath is used frequently by members of the public going to and from the estates. Mr Runacres, from his consideration of the area, described the footpath as functioning as part of the highway network enabling people to cross the brook and he would expect it to be used 100s of times a day. He agreed that it would be used more than a 1000 times a week. He and Mr Hopwood gave evidence that the design of the footbridge and the use of guardrails in sections measuring six feet (rather than metres) indicated that the footbridge had been designed and built in the late 1970s or 1980s. The Council adduced evidence indicating that the land had been dedicated for use as a highway in 1987. On the balance of probabilities, I find therefore that the footbridge was built and the footpath constructed in about 1987.
6 The following description applies to the footpath on the Fishguard Road side of the footbridge, approaching the footbridge (as the claimant did on the night of the incident) from Fishguard Road. The path leading to the bridge is approximately just over 2 metres wide (one expert said it was 2.1 and one that it was 2.2 metres wide). It has a metalled surface. There are concrete edging units along the side. At the point where the footpath approaches the bridge, one of the concrete edging units is missing. There is a drop down to the ground adjacent to, and on the left of the footpath, of between 0.1 and 0.3 metres along the length of footpath. There is an area of ground between the footpath and the wing wall. The distance from the footpath to the wing wall at this point is 1.8 metres (that was measured by Mr Runacres and I accept that his measurements were accurate). The vertical drop from the wing wall to the river bed is 2 metres.
7 From the footpath to the retaining wall, the position is that there is a drop down from the footpath to the adjacent ground of between 0.1 and 0.3 metres. No one had measured the distance from the footpath to the retaining wall. Mr Runacres estimated it to be approximately 1.5 metres. Mr Rowlands, who inspected the area in November 2011, estimated it as about 1.4 or 1.5 metres. Both witnesses had visited the site and were able to make good estimates of the distance. I find as a fact that the distance between the footpath and retaining wall is approximately 1.4 to 1.5 metres. The vertical drop from the retaining wall to the level of the river bed is 1.5 metres.
8 There is also a section of the retaining wall which is lower than 1.5 metres from the level of the river bed. Mr Runacres would estimate that vertical drop to the level of the river bed as being about 1 metre. At the time that he visited the site, the retaining wall had been built up and three levels of breeze block had been added to this section of the retaining wall so that the retaining wall was all of the same height. Bearing that in mind, I find that Mr Runacres is a reliable witness well able to estimate the likely distance of the vertical drop to the river bank from this section of the retaining wall (prior to it being built up) as approximately 1 metre.
9 Prior to reaching the footbridge, there is an area of ground to the left of, and adjacent to, the footpath. At that point, the edging units of the footpath were cracked and uneven at the time of the incident. There was a depression where the level of the footpath on the left hand side had shifted. That depression was measured by Mr Hopwood as 60 millimetres in October 2014 and would have been roughly of that size in December 2011 although the depression may have been a little less (I accept the evidence of Mr Hopwood on this matter). This is best described as a depression, that is, the height of the footpath is higher at one point than a another. There was no pothole and no sharp edge on the footpath at the material time.
10 There is a drop of between 0.1 to 0.3 metres from the footpath to the ground to the left of the footpath. The ground then sloped at a gradient. There is then a steep slope which goes down to the brook. The distance of the ground forming that gradient between the footpath and the start of the steep slope was not measured. Mr Runacres estimated that to be 1 to 1.5 metres. Mr Rowlands estimated the distance between the footpath and the start of the steep slope to be about 1 metre. I consider that Mr Rowlands is a reliable witness who visited the site and is well able to express a view on distance. Mr Runacres did not measure the area but inspected and is able to express a reliable view of distances which accords with Mr Rowlands. I find as a fact that there is then approximately 1 metre of ground which slopes at a gradient, and there is then a steep slope which goes down to the brook.
11 These four areas are visible in photographs adduced in evidence. The photographs give a reasonably good visual sense of the area but all witnesses agreed it would not be possible to estimate distances reliably simply by looking at the photographs. The general view of the approach to the bridge can be seen, for example, from photograph 700. The 3 areas described in paragraphs 6,7 and 8 above appear, for example, from photograph 702 (and Mr Runacres marked the distances that he measured, and estimated for the first of those two areas on the back of the photograph). The fourth area is visible, for example, in photograph 713.
12 There are two lampposts on the footpath. There is one on the Fishguard Road side which, if on and working, would provide illumination at night for those using the footbridge. Mr Singh thought the lamp was not working on the night of 9-10 December 2010 when the incident occurred. Mr Donnelly and Ms Donnelly are both frequent users of the path. They both gave evidence that the lights did not work from time to time. Both were adamant that the light on the Fishguard Road side an nearest the footbridge was not working and they reported the fault to the defendant before the incident involving the claimant occurred although they could not be sure of the precise dates when the light was not working. The defendant's records show that the light was inspected and was working on 8 December 2011 and on 23 December 2011. The records show, however, that a resident complained that the light was not working on 13 December 2011. In my judgment, on a balance of probabilities, there was an intermittent fault with the light on the footpath and there were times when it was not working. I accept the evidence of Mr and Ms Donnelly that the lights were not working at a time before the incident occurred. I accept the evidence of the claimant on this point that the lamppost nearest the footbridge was not working on the night of the incident.
The Incident on 9 to 10 December 2011
13 The claimant and a friend went out in the early evening of 9 December 2011, first to the Westgate public house and then to the Admiral Napier. The claimant had one pint of lager in each public house. His friend left to go home. The claimant went to the rugby club at Llanishen which was a usual place for him to go and socialise with friends. He had more to drink there. He thought it would be four or five pints of lager and possibly two liquers. In fact, pharamacological tests were carried out on blood samples taken from the claimant after he had been recovered from Llanishen Brook on the morning of 10 December 2011. Those showed that the clamiant had 200 mg of alcohol in 100mL of blood at about 9.43 am on Saturday 10 December 2011 (approximately 8 hours or so after he left the rugby club). That was equivalent to 2 and ½ times the legal limit for driving.
14 The claimant walked from Llanishen rugby club, turned on to the footpath leading from Fishguard Road and walked towards the bridge over Llanishen Brook. This was at about 1.30 a.m. on the morning of 10 December 2011. The claimant lived in a house at Gibson Close, the other side of the footbridge. He had used the foopath and footbridge many times in daylight and at night time and in all weathers. The meteorological evidence (agreed by both experts and unchallenged) is that the temperature was at or below freezing point. There was no rain. The moon would have provided some illumination in the general area and there were no meteorological conditions which would have interfered with visibility. It is admitted that the trees in the vicinity were deciduous and had no leaves on them at the material time and would not have obscured any light that came from the moon. I have found as a fact that the lamppost near the footbridge was not working on the night. The claimant said in oral evidence that the night was misty. He had not previously said that before. It is contradicted by the meteorological evidence. I find that the claimant's recollection on this matter is faulty and the night was clear not misty.
15 There came a time when the claimant ceased to be on the path and went into the brook. He was in the brook overnight, for about 8 hours, when he was found the next day by Mr Timothy's son. The emergency services were called. The claimant was taken to hospital. Fortunately, he survived but he has suffered severe injuries. In terms of the claim that he has brought, the mechanics of the incident that is, how it was that he came no longer to be on the footpath and where he entered the brook are of critical importance.
The Location Where the Incident Occurred
16 Dealing first with where the incident occurred. I find as a fact that the claimant ceased to be on the footpath in the fourth of the locations that I have described above. That is, the claimant ceased to be on the footpath before he reached the footbridge. The claimant was on the sloping gradient adjacent, and to the left of, the footpath as one approaches the bridge from Fishguard Road. He went down the steep slope on his back and entered the brook feet first. He did not go over the wing wall, or the retaining wall, and did not drop vertically into the brook. I reach that conclusion for these reasons.
17 First, the claimant himself gave evidence. He had some, but not perfect, recollection of the incident. He said that he slipped and tried to grab hold of something. He said that he slid on clay, was on his back and entered the stream feet first. He indicated where he thought he was (and marked that on photograph 715). He was not immediately where the footpath met the bridge but was some way back from that. That account is consistent with him being on the sloping gradient and sliding on his back feet first into the brook. There is no indication in his evidence that he fell over a wall (such as the wing wall or retaining wall) or that he had a vertical drop into the brook.
18 Secondly, that accords with the location where he was found. He was found, lying on his back, with his feet in the brook, at the bottom of the steep slope going into the brook. Mr Timothy gave evidence as to where the claimant was found and, again, there are photographic reconstructions using a mannequin which show the claimant having ended up lying on his back, with his legs in the brook, at the bottom of the steep slope.
The Mechanics By Which The Incident Occurred
- The next critical question is how it came to be that the claimant ceased to be on the path and came to be on the sloping ground adjacent to the footpath. The claimant said in evidence that he was walking on the left hand part of the footpath going towards the footbridge. He was not walking on the edge where the edging units were. He was not walking in the middle of the footpath. He was walking between the edging units and the middle of the path, on the left hand side of the footpath.
- In his witness statement, he said that he heard a noise on his left hand side. It sounded, he said, like a child or a woman or an animal in distress. He said that he stopped to see if he could help. He said the noise was coming from the bushes on his left hand side. He said he stopped and turned his head and he slipped off the path.
- At various stages prior to the hearing, he had given accounts of what happened to doctors and others. A letter from a consultant cardiologist referring to an appointment the cardiologist had with the claimant on 25 October 2012 says that on discussion with the claimant he said "he slipped on some small pebbles on a slight slope and as a result slipped down into a stream landing on his back". In cross-examination, the claimant accepted that he probably did tell the doctor that although he said in his condition at the time he did sometimes say things without thinking.
- Mr McCarthy, a spinal surgeon, records what the claimant told him in a report following an examination on 28 January 2015. The report notes that the claimant records the events as flashbacks and had dreams of them and that it had taken him some time to piece together what had happened. The spinal surgeon said that the claimant had stated that he heard some screaming or distress whilst walking along a dark lane where there was no lighting. He went to look in the bushes at the side of the lane to identify the source. He then slipped down a bank and remembers sliding towards a stream. He ended up in the stream feet first and face up. In cross-examination, the claimant accepted that he had probably told Mr McCarthy that but he did not specially recall the events now. He said it was dark and he would not have gone to look into the bushes. He did not remember going into the bushes and did not think that he did.
- In my judgment, on a balance of probabilities, I find as a fact that the claimant voluntarily left the footpath and stood on the ground adjacent to the footpath. He then lost his balance and fell backwards and slid down the slope on his back, feet first. I reach that conclusion for the following reasons.
- First, there is no mechanism which would have caused him to end up on the ground adjacent to the footpath given where he says he was and what he was doing. He was not walking on the edge of the path (he was between the edge and the middle of the path, on the left hand side). He would not therefore have tripped or fallen over the broken or uneven edging units at the side of the path. There is a depression on the path. There is not a pothole or edge over which the claimant could have tripped. Indeed, his evidence is that he stopped on the footpath and then, by some other mechanism, slipped onto the adjacent ground.
- Secondly, he accepts that he heard a sound coming from the bushes on his left hand side and he stopped to see if he could help. He was therefore stationary and contemplating something happening in the bushes to his left and contemplating giving assistance.
- Thirdly, he did tell the spinal surgeon in 2015, when his memory of events and recall was better, that he did leave the path to look in the bushes. He also told a doctor in 2012 that he slipped on some small pebbles on a small slope. All of that is consistent with him falling when he was already on the slope (and not falling off the path onto the slope) and with him having voluntarily left the path and standing on the ground adjacent to the footpath when he then lost his footing and fell backwards and slid down the slope on his back feet first.
- Following the incident, the defendant did install three sections of railing, 6 metres each, on the Fishguard Road side of the incident. Those railings extended past the area where the claimant stopped and left the path on the night of the 8th to 9th December 2011. An individual could still access the area of ground where I find the incident to have occurred by going around the edge of the railings albeit at an earlier point along the path.
- Against that factual background, the following three issues arise:
(1) was the accident caused by a failure by the defendant to maintain the highway in breach of its duty under section 41 of the 1980 Act?
(2) was the accident caused by a failure of the defendant to take reasonable care to ensure that the claimant was reasonably safe when using the land adjacent to the footpath for the purposes for which he was permitted to be there in breach of its duty under section 2 of the 1957 Act?
(3) did the defendant owe a duty of care at common law for damage attributable to something that it had done (the introduction of a danger), breach of which caused the accident?
THE FIRST ISSUE THE 1980 ACT
- Mr Jones, on behalf of the claimant, submits that this footpath is a highway maintainable at public expense and this is accepted by the defendant. Mr Jones submits that the unevenness of the surface of the footpath and the irregularity of the concrete edging units gave rise to an state of disrepair and so as to amount to an actionable defect which, he submitted, caused the claimant to slip off the path and led to his injuries.
The Legal Framework
- Section 41 of the 1980 Act provides, so far as material, as that:
"41. Duty to maintain highways maintainable at public expense.
"(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.
"(1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice."
- Section 329 of the 1980 Act provides that:
""maintenance" includes repair, and "maintain" and "maintainable" are to be construed accordingly".
- Section 58 of the provides for a special defence. That section provides that:
"58. Special defence in action against a highway authority for damages for non-repair of highway.
"(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.
"(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:
(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions."
- The claimant must establish that there is a breach and that that breach caused injury of a type which the statute intended to prevent. If he does that, the defendant will have a defence to the claim if it can establish the defence established in section 58 of the 1980 Act.
- In terms of the scope of the duty imposed by section 41 of the 1980 Act, the Court of Appeal held in Jones v Rhondda Cynon Taff CBC  EWCA Civ 1497,  R.T.R. 13 at paragraph 11 that it is an absolute duty in the sense that:
"the highway has to be maintained in a state of repair that it is reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition".
- In James v Preseli Pembrokeshire District Council  P.I.Q.R. 114, Lloyd L.J. held that:
"The question in each case is whether the particular spot where the plaintiff tripped or fell was dangerous. If it was, then the defendant authority concedes that there was a failure to maintain the highway and the plaintiff would be entitled to recover. But if the particular spot was not dangerous, then it is irrelevant that there were other spots nearby that were dangerous or that the area as a whole was due for resurfacing.
"This point was made crystal-clear by the decision of this court in Whitworth v. The Mayor, Aldermen and Burgesses of The City of Manchester . In that case the decision in favour of the plaintiff had been founded on the ground that the pavement as a whole was in poor condition. The Court of Appeal rejected that approach. Russell L.J. said at page 6 of the transcript dated June 17, 1971: "The relevant question is whether that which caused the accident constituted a danger, not whether nearby differences in levels which did not contribute to the accident constituted a danger."
"Edmund Davies L.J. said at page 7:
"What is quite clear is that when a plaintiff in a trip case claims that she fell by reason of the dangerous condition of the pavement, she must indicate where and how she fell and she must prove it; and it is then for the court to consider whether the place where she fell constituted a danger for which the local authority could properly be held liable."
- Ralph Gibson L.J, who agreed with Lloyd L.J., observed that:
"it has been established by the decisions of this court that the standard of care imposed by the law upon highway authorities is not to remove or repair all and any defects arising from failure to maintain, such as differences in level or gaps between paving stones, which might foreseeably cause a person using the carriageway or footpath to fall and suffer injury, but only those which are properly to be characterised as causing danger to pedestrians. There is, I think, an apparent element of circularity in some of the formulations of duty or breach of duty which have been advanced. Thus the test of dangerousness is one of reasonable foresight of harm to users of the highway. But in drawing the inference of dangerousness the court must not set too high a standard. Any defect, if its uncorrected presence is to impose a liability, must therefore be such that failure to repair shows a breach of duty. The escape from any apparent circularity was stated, or re-stated, I think, by Steyn L.J. in Mills v Barnsley Metropolitan Borough Council  P.I.Q.R. P291 (to which my Lord has already referred) where, in holding that no breach of duty had been established, he pointed to the fact that the risk of injury from the demonstrated defect was of a low order and that the fall suffered by the claimant in that case must have been caused by her inattention when passing over an uneven surface or by misfortune. "
The Present Case
- First, and foremost, in the present case, in my judgment, any alleged defect in the highway did not, in fact, cause the injury that the claimant suffered. As I have found above, the claimant did not trip over the concrete edging units of the footpath nor did he slip on the depression in the footpath. He voluntarily stepped off the footpath onto the ground adjacent to, but not part of, the highway. He lost his footing on that ground and fell on to his back and then slid down the steep slope and into the brook. His claim for breach of the duty imposed by the 1980 Act fails, therefore, because the injury suffered was not caused by any alleged defect in the footpath.
- Secondly, and separately, I have considered whether the footpath at the location where the incident occurred was in a state of disrepair such as to amount to an actionable defect for the purposes of section 41 of the 1980 Act. I bear in mind that this footpath is approximately two metres wide. It has a metalled surface. It is well used as a means of going from one housing estate to another. It is used hundreds of times a day, and thousands of times a week, by people crossing over the brook.
- The first defect identified and relied upon by the claimant is the broken and uneven edging units (there is an edging unit missing but that unit is missing near the bridge itself and not where the incident occurred). I find that the broken and uneven edging units are not such as to amount to a state of disrepair giving rise to a breach of the duty imposed by section 41 of the 1980 Act. The footpath is wide. There is ample room for persons to pass, and repass, over the footbridge without stepping on the concrete edging units. The risk of anyone tripping over the edging units at that point on the footpath and falling down into the brook is very low.
- That view is reinforced by the expert evidence. Mr Hopwood for the defendant gave evidence that the primary purpose of the edging units would be to support the footpath and they would not expect to be walked on. The footpath was wide enough to be used without there being any need to step on the edging units and to allow people to pass each other. Mr Runacres for the claimant did identify this as a defect. He was, however, primarily concerned in his evidence, in my judgment, with the risk arising at a later point on the footpath, namely the risk that if someone left the footpath they could fall over the wing wall or the retaining wall and have a vertical drop into the brook. He was concerned that persons could stumble and fall, or there was a risk of inadvertent access to the area where the walls were and where there would be a steep fall into the brook. He was less concerned with the risk posed by the edging units further back from the bridge where a person, if they stumbled on that edging unit, would stumble and fall onto soil. He considered that gave rise to a reduced risk. In my judgment, the broken and uneven edging units in the vicinity where the incident occurred were not in such a state of disrepair as to give rise to a breach of the section 41 duty.
- The second defect identified is the depression caused, probably by the support subsiding and the surface of the footpath becoming uneven. This was described as a depression and was measured by Mr Hopwood as being a depression of 60 millimetres (although it is likely to have been less at the time of the incident). I accept the accuracy of his measurement. This matter is of more concern. It occurs on a well used metalled footpath used many hundreds of times a day. The evidence of Mr Hopwood is that any depression of over 40 millimetres would be a matter of concern, although he would regard it as low risk.
- On balance, I am satisfied that the depression did not amount to a defect or state of disrepair such as to cause a danger to pedestrians and its non-repair did not amount to a breach of section 41 of the 1980 Act. I accept that this is a busy footpath used many times a day. The depression, however, was not a pothole or a hazard capable of tripping someone. It was a change in height over an area to the left of the footpath. In terms of the location and the risk if a person did fall or slip from the path due to the depression, the person would fall onto soil adjacent to the area of the footpath containing the depression. There was no risk that the depression would cause someone to fall or stumble in such a way as to cause that person to fall over the wing wall or the retaining wall and endure a vertical drop into the brook. The risk posed by the depression was, therefore, relatively low as Mr Hopwood said.
- On balance, therefore, I consider that the presence of this depression on the footpath did not constitute a breach of the section 41 duty. I am reinforced in that conclusion by the fact that there is no record of any accident having occurred at this location over the time it is likely that a depression of something in the region of the size of this depression would have been present on the footpath. The claimant and Mr and Ms Donnelly who lived on the estates had used the footpath many times and not suffered an injury or had any cause to complain about the state of the footpath (Mr and Ms Donnelly had complained about the lights not working). The defendant provided the disclosure sought of complaints for three months from 1st October 2011 to 29 December 2011 and no complaints were recorded. Ms Bolwell made a witness statement stating that there had never been any complaints about the footbridge or the footpath before. Ms Bolwell was not well enough to give evidence and her evidence was not therefore tested in cross-examination. All the evidence is, however, that persons used the footpath hundreds of times a day when the depression was present and there was no recorded accident (still less a serious accident of the kind suffered by the claimant) and no recorded complaints. My conclusion that there is no breach of the section 41 duty is not dependent on the absence of recorded accidents or complaints: but it reinforces the conclusion that I have reached.
- For completeness, I mention the evidence of certain of the other witnesses. Mr Rowlands, a lands service officer at the parks department of the defendant, carried out a survey of a section of Llanishen Brook on 23 November 2011, shortly before the incident. He surveyed the brook from the Rugby Club to the footbridge. He marked the condition of the bridge as 2 on a scale of 1 to 5, 1 being poor and 5 being good. He explained in evidence that he based that remark on the appearance of the bridge, graffiti and the presence of a shopping trolley. He was not, he said, expressing a view on the safety of the footbridge. He also marked the condition of footways and walkways and marked that as 2. He explained that that comment related to the whole section that he was surveying not specifically the footpath by the bridge. I found Mr Rowlands to be an honest witness and I accept his evidence about the survey document as truthful. He also gave his opinion about what he saw. He said he saw no obvious defect. I do not rely upon his opinion as to the state of the footpath. He was not familiar with this area. Furthermore, he is not a highways inspector but is a land services officer in the parks department, and has limited training in inspection. Whilst I accept that he genuinely did not consider there were any obvious defects in the footpath calling for any remediable work, his opinion on whether there was a defect did not assist me in reaching my conclusion.
- Mr Misbah is a highway claims officer employed by the defendant and had previously been a highways officer. I did not find his evidence of assistance and he was an unsatisfactory and unreliable witness. He had not visited the site and his views were based on the photographs taken at the time although he admitted that it was not possible to gauge measurements from photographs alone. Furthermore, he was insistent that the footpath was the responsibility of the parks department not the highways department but displayed no understanding of how or why this footpath was in fact a highway maintainable at public expense.
- Ms Mullane also gave evidence. Ms Mullane was the police officer who was responsible for the investigation into the incident. She had in fact been a community policer officer in the 1980s and early 1990s in Llanishen and had used the footpath and the bridge many times. She had never complained about the state of the footpath or the bridge. She expressed her view, however, that when she visited the site again in about December 2011 she thought the area was dark and dangerous. Her view was based on the fact that the footbridge had been designed in a way in which in her view the railings were not long enough and there was a significant drop on either side of the footpath. Ms Mullane is not, however, an expert in engineering or highways and had no background in engineering. She expressed her view as a person visiting the scene. Furthermore, her view was based on the area not on any observed defect in the footpath itself.
- As I find that there was no breach of duty, it is not necessary to consider the defence under section 58 of the 1980 Act. I would note that the defendant does not identify the facts on which it relies in its defence. Its evidence on this issue was unclear and inchoate. The defendant's witnesses did not explain clearly why this footpath was left to the responsibility of the parks department and not inspected by the highways department in accordance with any relevant policy on inspections of footpaths even though the defendant accepted that it was a highway maintainable at public expense. The defendant did not provide clear evidence as to what policy would have applied if it had been treated as a highway although a document was produced which referred to inspections of adopted footpaths being carried out on a reactive basis, that is in response to a complaint. No witness from the defendant in fact identified that document as containing the current, applicable policy to inspections of footpaths. If I had found that there was an actionable defect which had caused the injury, I would not have found on the evidence before me that the defendant had established the defence in section 58 of the 1980 Act. I would not have been able on the evidence adduced by the defendant to find that it had taken such care as in all the circumstances (including those referred to in section 58(2)) was reasonably required to secure that the relevant part of the highway was not dangerous. In particular, if there had been a defect, I am not able to tell whether the defendant knew, or could have been expected to know, the condition of the highway given the absence of evidence about the applicable inspection regime for this footpath and, indeed, the evidence, that the footpath was not inspected by the highways department of the defendant and was only considered as part of the parks services.
THE SECOND ISSUE THE 1957 ACT
- Mr Jones for the claimant submits that the defendant, alternatively, breached a duty of care owed to the claimant under section 2(1) of the 1957 Act. He submits that the defendant was the occupier of the land adjacent to the path. It knew that in close proximity to the path was the top of a steep bank. He submitted that the claimant was permitted to enter onto the land and that the premises at this point were unsafe as the top of the bank should have been fenced.
The Legal Framework
- Section 1(1) of the 1957 Act provides that:
(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them."
- Premises on this context means land. It is not necessary that the land has buildings or structures upon it. The content of the duty is set out in section 2 of the 1957 Act which provides that:
"2. Extent of occupier's ordinary duty
"(1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
"(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
"(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
"(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)
(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and
(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
"(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
"(6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not."
- The 1957 Act is dealing with dangers arising from the state of the premises or anything done, or not done, on them. The essential duty is in section 2(2) of the 1957 Act. It is a duty to take such care as is reasonable in all the circumstances to see that a visitor will be reasonably safe in using the land for the purposes for which is invited or permitted to be there.
- In the present case, the defendant owns the land on either side of the footpath and, so far as one can tell from the evidence, the soil or land upon which the footpath is constructed. The claimant focusses upon the land on the side of footpath ("the adjacent land") but it is relevant and helpful to consider the circumstances by which the footpath and the adjacent land came to be used.
- On the evidence, I find that the purposes for which persons are invited or permitted to be present on the adjacent land is for purposes reasonably incidental to the use of the footpath. There is no suggestion in the evidence that the persons were invited or permitted to be present on the adjacent land for any other purpose.
- First, that appears from the context in which the land was acquired. There is evidence that the defendant's predecessor in title that that local authority wished to provide a footpath to enable persons to travel to and fro across the brook via a footbridge. There is a written document dated 9 February 1987 which indicates that the defendant's predecessor (South Glamorgan County Council) acquired land from the then Cardiff City Council. There is a written e-mail which suggests that the City Council may have acquired the land in the 1950s to develop a housing estate and sold the land on which the footpath stands to South Glamorgan County Council but the position is by no means clear. In any event, however, the dedication of 9 February 1987 indicates that the premises were to be used for highway improvement. Secondly, the evidence of all the witnesses who lived in the area was that they used the footpath to go from one estate to another. There was no suggestion that any of the land (including the adjacent land) was to be used for another purpose. There was evidence that someone may have used the adjacent land to gain access to the bridge as there was graffiti there and a shopping trolley had been pushed into the brook. But there was no evidence to suggest that that persons were permitted or invited onto the adjacent land for such purposes.
- In my judgment, the inference from the location of the adjacent land (next to the footpath and between the footpath and the brook), the circumstances in which at least some of the area in question was acquired (to facilitate a highway improvement in the form of a footpath and bridge over the brook connecting two estates) and the inference from the evidence of the users of the area as a whole is that persons were permitted to use the adjacent land for purposes reasonably incidental to the footpath.
- In that context, the question is whether the defendant had taken such care as was reasonable in all the circumstances to see that persons were reasonably safe in using the adjacent land for the permitted purpose. In that regard, it is relevant that the footpath itself was wide, approximately 2.1 metres, and the purpose of the footpath was to lead to the footbridge to enable persons to cross over the brook. The occasions when persons had to leave the footpath would be relatively few. If they did leave the footpath, it would or should be obvious that there was a brook to the left at the location where there was a gradient and a steep slope and, further along the footpath near the footbridge, a retaining wall and wing wall with a steep drop into the brook. There was a lamppost nearby which would give adequate illumination if it were working. The evidence is that there were intermittent faults and the light was not working on the night. There was, however, a system of reporting faults and the lights were checked at periodic intervals. Overall, I am satisfied on the facts of this case that the defendant had taken reasonable care in all the circumstances to ensure that persons who used the adjacent land for purposes incidental to use of the footpath were reasonably safe in doing so.
- In this regard, the approach of the Court of Appeal in Edwards v London Borough of Sutton  EWCA Civ 1005 is instructive. That case concerned an ornamental bridge in a park (it was not a highway). The claimant was pushing his bicycle over the bridge and fell off the bridge into the water below. There were no fences or guard rails on the bridge. McCombe L.J. (with whom Arden L.J. and Lewison L.J. agreed) accepted that an unfenced bridge would present more danger of a fall than a bridge with guard rails and the state of the premises could present a danger . In assessing whether there had been a breach of section 2 of the 1957 Act, McCombe L.J. said this at paragraphs 42 and 43 of his judgment:
"Ornamental bridges with low walls, together with water features, are likely to be common features of decoration in public gardens. Any structure of this type presents the risk that the user may fall from it. Unlike natural land features, such as steep slopes or difficult terrain or cliffs close to coastal paths, which Lord Hobhouse in Tomlinson said could hardly be described as part of the "state of the premises", it seems to me that a bridge with no sides or only low ones may present a danger from the "state of the premises" such as to give rise to the common duty of care. However, while I am prepared to assume that there was objectively a "danger" arising from the state of the premises in this respect here, does this mean that, in order to discharge the common duty of care, arising from that objective possibility of danger, no such bridges must be left open to visitors or must not be left open to visitors without guard rails or express warnings? In my judgment, the answer to this question is a clear "no".
"43 The reason for this answer lies, I think, in two well recognised principles of law. First, there is the proper treatment in law of the concept of risk. Secondly, occupiers of land are not under a duty to protect, or even to warn, against obvious dangers. Both these propositions appear in the speeches in Tomlinson's case.
- In terms of the risk, that involves assessment of the likelihood of the injury, the seriousness of the injury which may occur, the social value of the activity giving rise to the risk and the cost of preventative measures. In terms of the second proposition, McCombe L.J. said this at paragraph 47 of his judgment:
"The second proposition is, in my judgment, a particularly forceful consideration in this case. That there was some risk of a fall and the potential for injury must have been obvious. The approach to the bridge was clear and unobstructed. The width of the bridge and the height of the parapets were also obvious to the eye. The bridge was also over water, with whatever might lie beneath its surface. Any user of the bridge would appreciate the need to take care and any user limiting the width of the bridge's track, by pushing a bicycle to his side, would see the need to take extra care."
- Adopting that approach, the analogy in the present case is with the adjacent land near the brook and without fencing at the top. In terms of the risk of the likelihood of injury that, in my judgment was low. The risk of someone stepping off the path and then falling on the gradient and then sliding into the brook was low. I am reinforced in that conclusion by the fact that there had been no reported accidents in relation to the footpath which had been used many hundred thousands of times for over at least 20 years. I recognise the limits of the evidence on reported accidents. My conclusion is reinforced by, but not dependent on, the absence of reported accidents. If the risk materialised, the injury may be severe. Further, the cost of fencing which would have prevented the risk here was low (the cost of the fencing that was ultimately installed was approximately £1,875) although it is fair to note that if the duty required this area of land to be fenced the likelihood is that other areas may also need to be fenced. There is a real social value of allowing people a means of travel to and from the estates on either side of the brook, and the consequent use of adjacent land for purposes reasonably incidental to the use of the footpath. Importantly, in my judgment, if people are using the footpath and step off it, they would or should realise that they are leaving the metalled surface of the footpath and will be standing on ground. They should be aware that there is a brook next to the area. They should appreciate the need to take care if they choose to leave the footpath. In all the circumstances, it would, in my judgment, set the standard of care at too high a level to require the area of adjacent land to be fenced. The defendant did not fail to take reasonable steps in all the circumstances to ensure that persons were reasonably safe to use the adjacent land for the permitted purposes.
- For completeness, I note that section 2(5) of the 1957 Act provides that the duty of care does not impose any obligation on a visitor in respect of risks willingly accepted by the visitor. On balance, this is a case, where, if it had been necessary, I would have concluded that the claimant willingly accepted the risks. I have found as a fact that he chose to leave the footpath. He was very familiar with the footpath and had used it by day and night many hundreds of times. He knew the adjacent land led to the brook. Whilst there was no light working, there was a nearly full moon, and no obstructions to visibility and no leaves on the trees (they were deciduous and no leaves were present in December 2011).
- Even if the case did not fall within section 2(5) of the 1957 Act, I would have had to consider the question of contributory negligence. In my judgment, the claimant would have borne considerable responsibility for the incident that occurred. He chose to leave the footpath and step on to the adjacent land. Furthermore, he had been drinking and had a blood alcohol level that was 2 and ½ times the legal limit for driving. The likelihood is that affected his ability to maintain his footing when he chose to step on to the adjacent land and contributed to the accident. If it had been relevant, I would have found that his contributory negligence was 70%.
THE THIRD ISSUE COMMON LAW DUTY OF CARE
- Mr Jones thirdly submits that the defendant, as highway authority, owed a duty at common law for dangers attributable to dangers that it had introduced on the land, relying on observations made in Gorringe v Calderdale MBC 1 W.L.R. 2004. Mr Jones was careful to confirm that he was not identifying the existence of some statutory power and then seeking to impose a common law duty of care in respect of that power (a matter that was considered in Stovin v Wise  A.C. 923, amongst other cases). Rather he was relying on a common law duty of care arising out of acts done creating a danger (or a failure to abate danger created by others).
- Gorringe concerned the meaning of "maintain the highway" and the House of Lords held that that duty did not extend to the provision of information or signs. At paragraph 76, Lord Scott of Foscote said the following:
"76. In summary, if a highway authority is in breach of its duty under section 41(1) as amended
it can be sued if damage is thereby caused. If it is to escape liability it must bring itself within the section 58 defence. In addition, a highway authority may be liable at common law for damage attributable to dangers that it has introduced or, in the case of dangers introduced by some third party, that it has unreasonably failed to abate".
- Although not referred to in submissions, the matter has been considered extensively by the Court of Appeal in Yetkin v Mahmood  QB 827. There Smith L.J., with whom Black L.J. and Laws L.J. agreed, considered that there would be liability at common law for hazards created by the highway authority. There, the hazard consisted of the planting of shrubs which grew so large as to obscure the view.
- This is not a case where it is necessary to consider the precise ambit of the common law liability of a highway authority. First, in my judgment, on the facts here the highway authority did not create a hazard or introduce a danger by creating a footpath and footbridge. The footpath was next to a brook but the introduction of a two metre wide metalled footpath, with ample room for users, leading to a footbridge over a brook which had guard rails for the length of the footbridge itself, did not create a hazard or a danger. Secondly, there was no failure to take reasonable care on the part of the defendant by constructing the footpath and not erecting a fence to prevent persons going from the footpath on to the adjacent land. The footpath was intended to be used as a means of passage over the brook and between estates. It was wide enough to do so without having to resort to the adjacent land and, in so far as use of the adjacent land was reasonably incidental, there was an area of ground at a gradient before the steep slope into the brook. The defendant did not, in my judgment, breach any common law duty of care it might have owed by constructing the footpath and not placing fencing where the land adjacent to the footpath would lead to a slope into the brook. Thirdly, I do not consider that it was the creation of the footpath that caused the injury. For the reasons given, I have found as a fact that the claimant chose to leave the footpath and enter onto the adjacent land. Thereafter, he lost his footing and ultimately slide down the slope into the brook. It was his decision to do that that caused the injury. The presence of the footpath meant that he was in a position to leave the footpath and stand on the ground. But the footpath itself did not create the hazard that occurred and did not cause the injury. For those reasons, the claimant's claim based on common law negligence fails.
- If I had found the defendant liable, I would have had to consider the question of contributory negligence by the claimant. In my judgment, the claimant would have borne considerable responsibility for the incident that occurred. He chose to leave the footpath and step on to the adjacent land. Furthermore, he had been drinking and had a blood alcohol level that was 2 and ½ times the legal limit for driving. The likelihood is that affected his ability to maintain his footing when he chose to step on to the adjacent land and contributed to the accident. If it had been relevant, I would have found that his contributory negligence was 70%.
- The claimant suffered serious and life-changing injuries when he fell into Llanishen Brook on the night of the 9 to 10 December 2011. It is natural to have considerable sympathy with the claimant for the injuries that happened to him. Liability for damages for the injury depends, however, upon the application of the law to the facts of the case. The injuries were not caused by any failure to maintain the highway and the claimant's claim under the 1980 Act fails. The claimant's injuries were not the result of any failure by the defendant to take reasonable care to ensure that he was reasonably safe in using the land adjacent to the footpath and there was no breach of the duty imposed by section 2 of the 1958 Act. The defendant is not liable at common law for any negligence in relation to the injuries that the claimant sustained. For those reasons, the claim does not succeed.