Local Authority Wins Appeal Concerning a Signpost Placement
09/28/2021
In July 2021, Oxfordshire County Council successfully won an appeal against a cyclist who sustained injuries after he collided with a signpost on a cycle path owned by the local authority.
The facts of the case
This case, heard before Her Honour Judge Melissa Clarke, was an appeal and cross appeal from a decision of Deputy District Judge Stonham made following a trial of this claim on 8 October 2020 at Oxford.
The Claimant, C, was riding his bike along a shared cycle/pedestrian path built by the Defendant along the side of a road. He was cycling home from his work at sundown, as he had done many times before, when he collided with a street signpost erected on the cycleway by the Defendant, D, 22 years before. The signpost was and remains positioned on the unbroken white line dividing the shared cycle/pedestrian pathway.
At trial, Deputy District Judge Stonham found that the signpost represented a hazard and apportioned liability 1/3:2/3 to D and C respectively. Quantum had been agreed in the sum of £9,000. The decision resulted in C receiving judgment for £3,000.
D appealed against the finding of any liability. C appealed against the finding he was 2/3 negligent.
Both parties relied on the case of Yetkin v Mahmood & London Borough of Newham [2010] EWCA Civ 776, in which the duty concerning highways was stated by Lord Justice Smith at [17] in the following terms:
"The common law recognised a duty on any person not to create a hazard on the highway which would affect the safety of road users. The extent of the duty would be a matter of fact and degree; the common law has only ever imposed a duty to do what was reasonable (or avoid doing that which was unreasonable) in all the circumstances."
The Appellant Judge’s consideration of the law
Her Honour reviewed many authorities, one being Bolton v Stone 1951 A.C. 850 where the House of Lords considered the degree of care to passers-by that should be attributed to a property owner who allowed cricket games to be played on their land.
Lord Porter stated:
"It is not enough that the event should be such as can reasonably be foreseen; The further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken. ".
Lord Reed added to this in a statement emphasised by Her Honour Judge Melissa Clarke:
“What a man must not do, and what I think a careful man tries not to do, is to create a risk which is substantial… in my judgment the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger".
In Lewis v Wandsworth Borough Council [2020] EWHC 3205 (QB), Mr Justice Steward summarised the important points in Bolton as:
- Just because an accident was reasonably foreseeable, liability does not automatically follow.
- The Court must consider the chances of an accident happening, the potential seriousness of an accident, and the measures which could be taken to minimise or avoid an accident occurring.
- The decision in Bolton does not conclude that anyone who hits a cricket ball out of the grounds or over a boundary escapes liability. The Court must examine all the facts.
- In appeal cases, the Court should apply Lord Porter’s test as set out above.
The decision
Her Honour concluded that the fact that the signpost may have represented a foreseeable risk of harm was not enough to establish liability as not all foreseeable risks give rise to a duty to take remedial action. It was for the Deputy District Judge to ask himself:
a) Whether this signpost, in this place, in all the circumstances, represent a foreseeable risk of harm?
b) If it did, was the risk greater than the everyday risk which cyclists normally face and therefore, D should have taken remedial action.
Judge Clarke ruled that the Deputy District Judge merely identified the signpost as a hazard without any of the analysis required by the authorities to determine whether it was a real source of danger. Therefore, he did not properly direct himself on the law relevant to the danger test.
Setting aside the Deputy District Judge’s decision and seeing no need to consider the cross-appeal, Judge Clarke sent the case back to the County Court for a retrial.
Comment
The Appeal Judge commented on the striking lack of analysis by the County Court Judge. When setting out how important it was for a judge to provide adequate reasons for their decision, she quoted Lord Justice Henry in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377:
“… want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself ".
Lord Henry’s words are especially important for a losing party to remember.
While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these article
