Suffolk County Council v Samantha Lyall [2025] EWHC 1032 (KB)

[2025] EWHC 1032 (KB)Case No KA-2024-000130
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2025
Before
MR JUSTICE JAY
Between
SUFFOLK COUNTY COUNCILAppellantMRS SAMANTHA LYALLRespondent
Antonia Ford (instructed by Suffolk Legal) for AppellantCharles Davey (instructed by DLG Legal Services) for RespondentHearing Hearing date: 15 April 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 29 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE JAY
[1]This is an appeal against the Order of HH Moloney KC (sitting as a Circuit Judge in retirement at Ipswich County Court) made on 1 July 2024. He awarded damages to Mrs Samantha Lyall (the Respondent to this appeal, but I will refer to her throughout as the Claimant) against Suffolk County Council (the Appellant to this appeal, but I will refer to it throughout as the Defendant) in the sum of £12,424.83 in relation to a slipping accident which took place on 16 December 2020.[2]At the conclusion of the oral hearing, I announced that the appeal would be dismissed. These are my reasons for that conclusion.[3]The Claimant was walking her dog with a neighbour through Binney Woods which is near their homes in Capel St Mary outside Ipswich. The woods are private property but they were using a footpath which was a public right of way that the Defendant as the highway authority had a duty to maintain and repair. As the judge found, the footpath is largely unmade-up but at certain points there are wooden bridges over ditches, and lengths of wooden boardwalk over boggy stretches of the path. The Claimant slipped on one of the boardwalks and broke her left ankle.[4]The evidence was that the wooden boardwalk was installed in 2015. The Claimant told the judge that she slipped on “slimy green mildew” as well as mud and damp fallen leaves. All of this is unsurprising in the winter months, and the evidence was that this is a relatively dark and shady environment.[5]The judge rejected the claim under section 41 of the Highways Act 1980. He followed the decision of Haddon-Cave J (as he then was) in Rollinson v Dudley MBC [2015] EWHC 3330 (QB) which is authority for the proposition that there is no statutory duty to ensure that highways are clear of moss, algae, lichen or similar vegetation. As for the claim in common law negligence, the judge rejected the claim based on a failure to inspect, but he upheld the claim on the Claimant’s alternative argument on the need to consider specifying anti-slip measures. His reasons were as follows:
“3.5d. Where I do have concerns is in relation to the specific risks presented by wooden boardwalks. Even in that case more regular inspection may not be practicable. Though boardwalks make up a small proportion of the overall length of rural pathway, of course in most cases they will be dotted in short strips along longer unmade-up paths so similar problems of inspection may arise and reactive maintenance may still generally be appropriate. e. But as to the use of anti-slip strips, at least in respect of boardwalks located in damp and shady places such as Binney Woods, the Council's own specifications make it clear that this is likely to be advisable. Damp and shady conditions not only make it harder for paths to dry out, but I take judicial notice of the fact that they are likely to encourage the growth of slippery moss and algae. Such strips can be installed at relatively modest initial costs (given the limited amount of relevant boardwalks) and do not require regular maintenance and inspection. The defendant has produced no evidence of any initial risk assessment or other reason why in this damp and shady location anti-slip measures were not specified or installed from the outset. f. I therefore conclude, on the facts of the present case: that it was the Council's duty to consider specifying anti-slip measures as part of the initial construction of this boardwalk, and to do so unless there was good reason not to; and that in the absence of any risk assessment or other evidence of such reasons, its failure to do so was a breach of that duty towards the Claimant...”
The evidence was that there are 3,600 miles of footpaths with public rights of way in Suffolk, of which less than 10 miles have boardwalks.[6]The judge’s reasons were succinct, but this was a fast-track trial where he only reserved judgment for reasons of time. This was not a case which merited a particularly lengthy judgment, any in my opinion neither party can feel with any justification that the judge has taken any short-cuts.[7]The Defendant does not challenge any finding of fact made by the judge. I do not read para 3.5d as containing a finding that the boardwalk was dangerous, although the judge did implicitly find that there was a risk of someone slipping.[8]The Defendant’s specification for wooden footbridges stated:
“Anti-slip netting fixed with staples may be specified for the deck when the bridge is in a damp and shaded location.”
[9]Although this footpath was not a wooden footbridge, the judge pointed out that boardwalks are constructed in the same manner. The Appellant took no issue with that.[10]The three Grounds of Appeal are that:(1) The judge failed properly to differentiate between public rights of way and highways maintainable at public expense, and in so going failed to apply the correct test laid down in Gautret v Egerton [1867] LR 2 CP 371 as upheld in McGeown v Northern Ireland Housing Executive [1995] 1 AC 233.(2) The judge effectively held the Defendant to a significantly higher standard of care in negligence than imposed under statute, whether under the Highways Act 1980 or the Occupiers’ Liability Act 1957.(3) The judge failed properly to assess or consider the lack of foreseeability of an accident of this nature at this location.[11]The Claimant seeks to uphold the judgment below on the reasons given by the judge and on the alternative basis that the Defendant’s duty arose in 2015 because it was creating a foreseeable risk.[12]Ms Antonia Ford focussed on her first Ground of Appeal which incorporates an argument that was not raised before the judge. In my view, this Ground turns on a pure point of law, and the fact that it was not taken below does not matter. She submitted on authority that the Defendant owed no duty to take positive action to make the boardwalk safer. The Defendant cannot be held liable for an omission. The fabric of the highway included the boardwalk and that was akin to tarmac or flagstones. No duty could arise in relation to the fabric of the highway, and it followed that there was no duty to take positive measures such as installing anti-slip strips because that would require (impermissibly) the existence of a duty of care based on an omission.[13]Ms Ford did not press her second and third Grounds in oral argument. She was right not to do so. The contention that the judge somehow fixed the Defendant with a higher duty than was owed under the Highways Act 1980 is not the correct analysis. What the judge found was that the absence of a duty of care under statute did not preclude the implication of a duty of care at common law by some different route. This was not in some way a higher duty of care: Ms Ford’s objection, properly understood, goes not to the standard of care but its existence. Further, the finding that the accident was foreseeable reflects all the available evidence as well as basic common-sense. I say no more about the second and third Grounds.[14]In my judgment, this is a straightforward case which raises no real issue of principle.[15]The judge rightly rejected the claim under section 41 of the Highways Act 1980. Given that this was not a highway to which the 1980 Act applied, there could be no duty of care in relation to an omission simpliciter.[16]Although not cited to the judge, the case of McGeown is authority for that proposition. The basis of this principle is that an occupier of land over which there is a public right of way cannot stop anyone from using it. I was also referred by Mr Charles Davey to the opinion of Lord Hoffmann in Stovin v Wise [1996] AC 923 which is on similar lines, although Lord Hoffmann expressly drew a distinction between omissions simpliciter and cases which fall into the category of a commission: “This is quite different from the duty owed by a person who undertakes a positive activity which carries the risk of causing damage to others. If he does not have the resources to take such steps as are objectively reasonable to prevent such damage, he should not undertake that activity at all.” (at 165G)[17]In Gautret the landowner had permitted a bridge to fall into disrepair. The Court of Common Pleas held that the construction of the bridge and then permitting persons to pass over it created over time the public right of way. There was no duty maintain or repair the bridge in these circumstances. However, in our case the public right of way pre-existed the installation of the boardwalk, and therein lies the distinction with Gautret. Similarly, in McGeown there was no duty to maintain and repair the path over which the public had in some point in time acquired a right of way. There was no evidence that the landowner had created any risk either at the time the footpath was first used or the right of way was acquired. The pothole developed later.[18]Thus, if the Claimant had slipped on wet mud or grass on an unmade-up footpath, it is clear that she would have had no claim. However, she slipped on a stretch of wooden boardwalk which the Defendant had chosen to install on or over an existing right of way. That in my judgment makes all the difference, and transmutes the case into being one of a commission. The foreseeable risk that arose thereby was one that the Defendant had both created and foresaw.[19]I also agree with Mr Davey (who appeared below, whereas Ms Ford did not), that it was not contended on behalf of the Defendant before the judge that the Claimant would have slipped in any event had there been no boardwalk. Maybe she would have done, but that would be an exercise in speculation and it was not a point that the judge was asked to consider.[20]Ms Ford also suggested in argument that the right of way would have been impassable without the boardwalk. It is true that one of the Defendant’s witnesses made that claim under cross-examination, but this was not a point which is addressed by any of the Grounds of Appeal.[21]In my judgment, the judge’s analysis of whether the Defendant discharged its duty of care in all the circumstances was correct. All that he was saying was that, on account of the foreseeable risk, consideration should have been given by the Defendant to the need to install anti-slip measures; and there is no evidence that any risk-assessment was carried out. The cost was not particularly high. The risk was greater in shady and damp areas of which the location of the accident was a clear example. Had there been evidence demonstrating that the Defendant had addressed these factors yet nonetheless decided not to install any anti-slip measures, the Claimant may have been in difficulty.[22]The judge did not refers to the acts/omissions distinction. This was because that distinction was not drawn to his attention during the trial. Had he been asked to consider the issue, he would inevitably have concluded that this was not a pure omissions case.[23]For completeness, I should add that I do not think that the Claimant needs her Respondent’s Notice. Although the judge may not have said expressly that the Defendant created the risk, that is an implicit finding which was clearly correct.[24]This appeal must be dismissed.