Court Ruling: Reaffirming The Limits of Duty Under the Occupiers’ Liability Act
10/22/2023
The law
The claimant, a cyclist, was riding through a park which fell within Chelmsford CC’s control. He was blinded by the low winter sun and collided with a metal people-counter situated to the left of the path, suffering serious facial injuries.
The people-counter is a post with an infrared section triggered by body heat, used to track footfall within the park. The post had a lid with protruding edges.
The claimant brought his case under the Highways Act 1980 and the Occupiers Liability Act 1957, and in common law. The Highways element of the case was withdrawn prior to Trial as the claimant accepted the defendant was not the Highway Authority.
It was alleged that the post was a danger due to its proximity to the edge of the path, its height which meant it was level with a cyclist’s face, and its sharp edges.
Decision
The defendant's duty as occupier was to ensure that a wide range of visitors are reasonably safe when using the park. It is necessary to consider whether a defect is a real source of danger with a reasonably foreseeable prospect of it causing harm. That the defendant is a publicly funded organisation was not lost on the Court, and it was acknowledged that a balance must be struck between risk and cost, and that the burden should not be unreasonably high.
The Judge found that the post was plainly visible, was not situated on the path itself (so could not be considered an obstacle) and that its height was necessary in order to fulfil its intended function. The path was wide enough for a cyclist and pedestrians to pass one another without leaving the pathway and interacting with the post. The Judge accepted the insured's submission that the reason the post had been removed post-accident was because the technology had become obsolete, rather than being any tacit acknowledgement that the post presented a danger.
The claimant's claim was dismissed in its entirety. The Judge commented that had the defendant been found liable, contributory negligence would have been found at 50% due to the claimant's failure to avoid the post which was there to be seen.
Commentary
This is a helpful judgment which reinforces the limits of a local authority's duty at common law and under the Occupiers' Liability Act to keep users of public facilities reasonably safe. Local authorities can be reassured that the Courts do not enforce an unreasonable burden, nor expect Occupiers to eliminate all possible danger. This Judgment is in line with the principles of common sense and with helpful acknowledgement of the limits of the public purse.
