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Highways/occupiers update - reasonable systems
defended
14 May 2008
Common sense has prevailed in two recent
decisions where the Court was asked to consider the reasonableness
of systems implemented by Local Authorities.
In
Harrison -v- Derby City Council (2008) the City Council
successfully appealed to the Court of Appeal against a decision
that it had failed in its duty to maintain a highway. The Council
had a system of inspection in place whereby footways were inspected
every six months and actionable defects (over 25mm in depth) were
repaired. The claimant had injured herself in a depression
measuring over 25mm which was caused by the collapse of a cellar
roof. The area had been inspected three months previously when no
depression had existed. The Council accepted that at the time of
the accident the defect was dangerous but it maintained that it had
a reasonable system of inspection.
The Court in the first instance found that
areas over cellar voids should have been inspected more frequently.
The Judge said that the Council had been aware of the risk of a
collapse and should have assessed that risk separately. The Court
of Appeal disagreed. It found that whilst each case turns on its
own facts it was unreasonable and disproportionate to introduce a
different system of inspection for areas over cellar voids. The
Council had taken such care in all the circumstances to ensure that
footways were not a danger to pedestrians.
This case is important because the Court of
Appeal was not prepared to say that the Highways Authority should
alter its systems to cover all eventualities. If the first
instance decision were allowed to stand, it would be open to
claimants to argue that Highways Authorities should be on guard for
all types of defects beyond the usual pot-holes which materialise
in the normal course. This decision reinforces the fact that
a Local Authority can rely upon its systems of inspection if they
are reasonable and defects actioned as appropriate.
In Foster -v- Wolverhampton City
Council, the elderly claimant had attended an art class at the
Local Authority run College. It started to snow at around
8.15am and the claimant fell because of the snow at around
9.15am. The College had a site manager who would be on site
and assess weather and grit accordingly. However, on
the day in question he had to cover a number of sites and was only
at the College between 7.15 and 8.00am. By that time it had
not started snowing and he did not pre-grit but did treat the area
when he returned at 10.00am.
The claimant had alleged that the Authority
was negligent and in breach of its duty as an occupier in that it
failed to implement a system of clearing the snow. It found
that the site manager should have considered the weather forecasts
(which he did not do) and possibly pre-gritted the area.
The Court found that it was reasonable that
the Authority had a site manager on hand to carry out the gritting
as and when required. Pre-gritting was too onerous although
the Judge did comment that arguably the site manager should have
considered weather forecasts as part of his “armoury”. Despite
that, the Council had done everything reasonably possible to ensure
the reasonable safety of the claimant.
This case reinforces the fact that an occupier
can rely on a reasonable system of inspection for preventing snow
accumulating on its premises and pre-gritting “just in case” takes
occupiers’ responsibilities for these types of premises too
far.
For more information or advise, please
contact Jonathan Cook or Susan
Mabbott.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.