Shine v Tower Hamlets [2006] EWCA Civ 852

B3/2005/2085, B3/2005/2085 (Z)[2006] EWCA Civ 852
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROMFORD COUNTY COURT (HIS HONOUR JUDGE WULWIK)
Venue Royal Courts of JusticeDate Friday, 9 th June 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE SCOTT BAKER
LORD JUSTICE RICHARDS
Between
MATTHEW SHINEAppellant(by his father and litigation friend)Appellant- v -
Between
LONDON BOROUGH OF TOWER HAMLETSRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR I COLLETT (instructed by Messrs Weightmans, London, WC1V 6RL) appeared for Appellant.MR B BRANSTON (instructed by Messrs Kenneth Elliott and Rowe, Enterprise House, 18 Eastern Road, Romford, Essex, RM1 3PJ) appeared for Respondent.
J U D G M E N T

LORD JUSTICE BUXTON:

[1]This appeal from a decision of HHJ Wulwik in the Romford County Court concerns an accident that took place as long ago as 13 October 2001. Matthew Shine, then aged nine years, was passing along a road in Bethnal Green together with his mother and two of his young relatives. The local authority, the appellants in this case, the London Borough of Tower Hamlets, had installed a number of bollards on the footway. The purpose of those bollards, an item of street furniture very familiar in London, was no doubt to prevent persons parking on the pavement; but also to protect pedestrians from danger from the traffic. Matthew Shine left his mother, went up to one of these bollards and attempted to leap-frog it in the ordinary way, as the judge found that children sometimes will do. Most unfortunately, the bollard that he chose for this purpose was insecure, not being properly secured to the floor, and under impact from Matthew it wobbled and he fell off and injured himself.[2]The judge found that had the bollard not been insecure Matthew would have perfectly safely achieved his leap-frogging. The judge heard evidence from a number of people but more particularly in this context from a highway inspector employed by the defendant, a Miss Hopkins, who gave evidence that he accepted and which I will venture to say was plainly given in a frank and proper manner and not in any way defensively on the part of her employers. She told the judge that the bollard in question had been identified in a loose state on 10 July 2001, that is to say three months before the accident, and she had for that reason raised an order through the local authority’s normal procedures for a repair to be carried out on the bollard in order to attach it securely to the floor.[3]Unfortunately, for reasons that the judge identified as being what he described as budget constraints, though I think that the course of events may not have been fully clear, the base of the bollard was not made secure until shortly before 7 March 2002. That date was identified because that was the date upon which payment was eventually authorised for the local authority’s contractor who had by then done the work.[4]The claim in respect of Matthew’s injuries was advanced under two grounds: first of all as a breach of statutory duty under the Highways Act 1980 and secondly, as a matter of common law negligence. As I shall in due course explain, the first of those heads of claim played the preponderant part in the hearing before the judge, but the claim in negligence is also of substantial significance.[5]The judge made various findings that for the purposes of this appeal are not challenged by the defendant. A number of those related to whether there was a statutory defence of regular inspection and also related to claims originally raised, but not now persisted in, as to whether Mrs Shine herself had been negligent in her supervision of her son. What the judge did find, and is not challenged, is first that it was foreseeable that children might leap-frog over bollards. The judge reached that conclusion on a robust common sense basis, relying on his own observation of the way in which children behave. Quite plainly that finding was not only open to him but also, in my respectful view, correct. In any event it is not challenged.[6]Secondly, it is accepted as the judge found (and again was unavoidable on the evidence I have already set out from Miss Hopkins) that there had been a failure properly to maintain the bollard before the time of the accident. I should say that the extent of the failure and the actual condition of the bollard at the time of the accident, as opposed to at the time many months later when the accident was investigated, was a matter of some controversy before us. For reasons I shall explain, it is not necessary to pursue that dispute further.[7]The judge also accepted the evidence of Matthew, who he found to be a reliable and honest witness, that he did not see the hole in the ground at the base of the bollard, which was the reason why it was insecure, and that if he had seen that he would have gone on and chosen a different bollard for his exercise.[8]I deal first with the claim for breach of statutory duty. That arises under the Highways Act 1980, with two possible sections brought into issue. The first is section 41, which concerns a duty to maintain highways maintainable at public expense, and secondly section 66 in a sub-chapter of the Act headed “Safety Provisions”, which deals with the provision of guards and rails for publicly maintainable highways.[9]It was sought to be argued that section 66 creates a statutory duty, in the sense of liability to an individual, for the incorrect performance of the installation of the equipment to which it refers. That is not the correct analysis of section 66. Section 66(2), which we are concerned with here, reads as follows:
“A highway authority may provide and maintain in a highway maintainable at public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.”
[10]Sub-section (3):
“A highway authority may provide and maintain in a highway maintainable at public expense by them which consists of a footpath, such barriers, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.”
[11]That has all the indication of being a permissive section, that permits the highway authority to install such barriers or other street furniture as they think are reasonably necessary in order to maintain safety. Such a provision was no doubt thought necessary, or at least prudent, because simply to place a barrier or fence in the public highway would or might, without statutory permission, be an unlawful obstruction of that highway.[12]But I do not accept that that permissive provision in itself grounds any liability in the case of injury emanating from such barrier or fence to an individual. The statutory claim is that under section 41; which relates to the duties of a highway authority to maintain the highway (and that includes the footpath). Section 41 introduces a new obligation on highway authorities which previously were only responsible for positive misfeasance as opposed to failure to maintain. Was this therefore a case of failure to maintain the highway such as to excite the obligation to individuals for breach of statutory duty under section 41?[13]It was argued that the defect in this case was in fact the existence of the insufficient hole in the highway into which the bollard had been placed and which caused the bollard to be insecure. I cannot accept that analysis, which it seems to me on the facts is highly artificial. The complaint in this case is that the bollard itself was insecure. That is a complaint about the street furniture. It is not a complaint about the nature of the highway. Much less is it a complaint in respect of failure to maintain the highway. The highway has already been interfered with by the placing of the bollard; that, as I have said, is why the power under section 66 is all that may be required. But the fact that the hole is inappropriate for the reception of the bollard is not a failure to maintain; it is a failure properly to ensure that the bollard is safe and upright.[14]I therefore do not think that this case, for that reason, falls under section 41. I am fortified in that impression by what was said by Lord Scott of Foscote in the case of Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 at paragraph 51. In that case the complaint was about the obliteration or absence of street markings. The issue was whether that was a failure to maintain, but Lord Scott had something general to say about what one might generally call “street furniture”. He said this in paragraph 51, referring to a previous authority that I shall mention in a minute:
“In a case, therefore, where the damage complained of has been caused not by a failure to maintain the highway but by something done by the highway authority, or for which the highway authority have become responsible [reference is made to Sedleigh-Denfield v O’Callaghan but I will continue] liability continued after 1961 as before, to be determined by the common law principles of negligence or, as the case may be, public nuisance. It is only where the alleged liability arises out of a failure ‘to maintain’ the highway that the section 41(1) duty and the section 58(1) defence come into play.”
[15]The section 58(1) defence is the reasonable inspection defence, which is not now an issue in this case. Lord Scott’s reference to 1961 is a reference to the introduction of the present section 41 duty under a predecessor statute, as I have already explained. The case that Lord Scott relied on in drawing his distinction is Skilton v Epsom and Ewell Urban District Council [1937] 1 KB 112,which he refers to in his previous paragraph. That was a case about a line of traffic studs placed in the centre of the highway, something very familiar now but possibly less common in 1937. One of these became loose, struck a cyclist and caused her to be injured. She sued the Highway Authority and the court held that it was correct that she could recover even though there was then no liability for failure to maintain. Romer LJ said this in the passage quoted by Lord Scott of Foscote:
"I think that the defendants have rightly been made liable for the damage caused to the plaintiff, and for this reason: they have done something on the highway not for the purpose of maintaining it as a highway but for some totally different purpose, and the act which they did had become at the time the injury was caused to the plaintiff a nuisance to the highway for which they were, in my opinion, properly made liable, notwithstanding the fact that they are also the highway authority."
And in a passage not quoted by Lord Scott of Foscote, Slesser LJ made the distinction between maintaining the highway and placing items on the highway for the purpose of safety. That might be thought to be something that directly applied to the traffic studs and directly applies to our case.[16]In 1937 the concentration so far as common law liability was concerned was, as we have seen in the passage cited from Romer LJ, upon the law of nuisance and that is no doubt why in paragraph 51 Lord Scott of Foscote quoted the case of Sedleigh-Denfield v O’Callaghan, which is a nuisance case and not one that applies to the highway. Be that as it may, in modern parlance we would think, as Lord Scott of Foscote thought, that these issues as to liability for injury caused by something that is not the maintenance of the highway but the introduction of items on to the highway are to be determined according to the law of negligence, and that is my view so far as what happened to Matthew Shine is concerned.[17]For that reason it is not necessary in this case to explore the issues that were explored at length before the judge and in his judgment, and which I have to say do form the major part of grounds of appeal to this court; that is to say, whether in leap-frogging the bollard Matthew Shine was engaging in an ordinary user of the highway so as to bring him within the ambit of the statutory duty created by section 41. We were shown some authority on that and also taken to some views expressed by a court of high authority, the Court of Appeal of Northern Ireland. I say no more about that than that the really quite difficulty questions borderline questions that can arise in those circumstances are better decided in a case where the actual decision turns on them. I also accept that there may be borderline cases in which there is a dispute as to whether what has occurred has been failure to maintain the highway or the introduction of objects onto the highway. As I have already indicated, this is a case where on the facts the matter seems to me to be clear. Other cases would have to be determined on their facts at the time.[18]I turn to the claim in negligence. This played only a minor role in the judge’s judgment but it was clearly pleaded before the judge and is the subject of a respondent’s notice to this court, and Mr Collett for the local authority very properly accepted that he had to meet that claim.[19]The elements of negligence were on the judge’s findings clearly established. He held, as we have seen, that it was foreseeable that Matthew, or rather a child in Matthew’s position, would quite likely leap-frog one of these bollards. It is also established on the judge’s finding that it was the insecure state of the bollard and nothing else that caused Matthew’s injury. Was the local authority therefore negligent in the sense of being culpable in not putting the bollard in order at the time when they came to know of its insecurity?[20]Mr Collett raised two objections to that, both of which he had placed before the learned judge but neither of which the learned judge appears to have determined. The first was that where there is a statutory obligation on a party, particularly on a local authority, that takes up the whole of that party’s obligation. There is no room for the introduction of the law of negligence either to fill a gap or to supplement the statutory duty. That argument raises matters of some difficulty in a case to which it in fact applies, but this is not such a case for reasons that I have already given. The obligation is the obligation under section 41 and that does not apply in this case because the complaint is not of failure to maintain but of introducing a dangerous object. So that point need not be investigated further.[21]Secondly, Mr Collett said that it would place an undue and unreasonable burden on the local authority if it was going to be held liable in these circumstances, and it was not right that simply the fact that Matthew was foreseeable as a leap-frogger should be held to generate liability. He said that not all foreseeable accidents lead to liability in negligence, and he put a number of cases to that effect before the learned judge. The learned judge recited these and Mr Collett’s argument in paragraph 26 of his judgment but then he, as it were, left them where they were, and went straight on to a more detailed discussion of the ambit of statutory liability. So this issue has not really had the benefit of the judge’s view.[22]I however cannot accept that this is a case where, although the structure in law of negligence is fulfilled, nonetheless as a matter of policy the court should withhold liability from the party who has caused the foreseeable damage. Although it has not been referred to before us, these are issues that effectively arise under the reasonable limb of the formulation fair, just and reasonable to be found in the well-known, indeed notorious, case of Caparo v Dickman.[23]Was there undue burden on the local authority in expecting it to place this bollard in a stable state, or alternatively, more accurately, requiring it to pay damages to somebody injured by its not being in a stable state? It seems to me on the facts of this case the matter is obvious. All that the local authority is being asked to do, or more accurately all that it is being penalised for failing to do, is something that it accepts through its own witness that it was going to do and should have done in any event. It had a policy of inspecting the bollards and a policy of putting them into a safe state if they were found to be insecure.[24]True it is that the witness for the local authority explained that by saying that if one left the bollard unattended it might get more dangerous to the extent that it fell over, blocked the highway or injured someone in that way. Nonetheless, in the ordinary course of events, according to the evidence of Miss Hopkins, this bollard would and should have been made secure well before Matthew Shine had the misfortune to encounter it on 13 October 2001.[25]This case is, therefore, I have to say miles away from the authority in the House of Lords that Mr Collett mentioned, the well-known case of Bolton v Stone. In Bolton v Stone the House indicated that there had to be a balance between the likely severity of the accident and the cost of putting it right. On the one hand the accident, although it was held to be foreseeable, was the result of a prodigious and unprecedented hit of the cricket ball out of the ground, on some computations a shot that travelled more than 100 yards; against on the other hand the only way of preventing that possible occurrence being either to shut down the cricket ground altogether or place fences around it of an excessive and no doubt unsightly nature. Although the case is authority for the general principle that there should be a balance, it goes no further than that. Applying the balance in this case, it seems clear to me that the balance comes down firmly on the side of saying that it would not be an unreasonable burden on the local authority to have taken the precaution in this case of getting their bollard into its proper state. We were shown a first instance case Gough v Upshire Primary School which is on the facts somewhat different from the present case and I do not intend to go into it, save to say that I should not be taken as necessarily agreeing with the view that the learned judge took in that case.[26]I would therefore hold that the requirements of the law of negligence were fulfilled in this case and I do not think, I have to say, looking at the way in which the world works, that the local authority need have undue fear about that decision extending their liability in unusual and exorbitant ways.[27]The final question is one of contributory negligence, upon which the local authority failed before the judge, and the single lady justice who dealt with the permission application and did not give permission for it to be pursued here. I respectfully agree. The basis of the claim of contributory negligence on the part of this nine-year old boy was first of all that he knew that what he was doing was something he should not do and secondly, that he knew that there was a danger to him in seeking to leap-frog even a stable bollard. There was a lot of evidence about this. Not surprisingly, in view of the fact that a 12-year old was being cross-examined by extremely capable counsel, some of it was inconsistent with other parts of it. The judge, however, in my view summarised the matter cogently in his paragraph 35 when he said this, having dealt with Gough v Upshire:
“I find that the bollard was not leaning or not noticeably leaning at the time the claimant sought to leapfrog over it and that there should have been no serious danger involved in leapfrogging the bollard for the claimant if the bollard had been securely fixed in the pavement as it should have been. I accept the evidence that the claimant should have been easily able to leap-frog the bollard had it been secured in the pavement. He was a proficient gymnast. The only reason that he did not complete the leapfrog over the bollard was because it was not securely fixed to the pavement and moved unexpectedly while the claimant was attempting to leapfrog over it.”
[28]I do not agree with the submission that that was simply a finding about causation. It seems to me that the judge was also saying that Matthew had no substantial reason to fear danger should he leap-frog over a secure bollard, and was also saying that in the context of his age, his proficiency and general behaviour, that was a reasonable and expected thing for him to do. To the extent that Matthew agreed that he should not have been doing what he did, I am bound to say, having read his evidence and read what the judge said about him, that that was the polite agreement of a well-behaved child and not any sort of admission of fault.[29]I therefore would dismiss the appeal and therefore uphold the judge, albeit on a basis which I accept is significantly different from the basis upon which he proceeded.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE RICHARDS: I also agree.

Order

Appeal dismissed.