Highway authority not liable for defective railings

Foulds & another v Devon County Council [2015] EWHC 40 (QB)

Highway authority not liable for weak railing that failed to save cyclist.

(Juge Cotter QC)

The facts:

Benjamin Foulds was very seriously injured when riding home on his bike.  He lost control of his bike as he was riding down a hill on his way home at dusk after attending college.  He crashed into some old wrought iron railings on his nearside that shattered on impact, causing him to fall over them and down a 4.54 metre drop the other side onto a pavement.  The top of the railings on his side were approximately 1.5 metres from ground level and they had been installed in the 1930s when the land was privately owned.  It was not established how fast he was riding or what caused him to lose control.

The road surface was in a reasonable state of repair and so no claim was brought under section 41 of the Highways Act 1980 against the local highway authority.  Instead the claim was made at common law.

The claimant’s case was that the highway authority owed a common law duty of care to ensure that railings were in place of sufficient strength and structural integrity to prevent a pedestrian or cyclist, from falling over the retaining wall to the ground below i.e. to cope with the potential impact from a pedestrian or cyclist.

The defendant relied on Gorringe v Calderdale MBC [2004] WLR 1057 to the effect that it owed no duty in this regard to the claimant. It could not be held liable for non-feasance, merely for failing to exercise a statutory power to maintain the fence, in contrast to its statutory duty under section 41 of the 1980 Act.  Neither did the relatively weak state of the railings constitute a trap or danger. 

The judge also quoted from Lord Scott’s judgment in Gorringe, at paragraph 76, ‘Drivers are first and foremost themselves responsible for their own safety’ and said that the same was true of cyclists.

The judge referred to the House of Lords ruling in Stovin v Wise 1996 AC 923 which laid down the rule that a highway authority owed no duty to excercise its power to maintain to improve the visibility at a dangerous road junction, even though the poor visibility there was an acknowledged hazard. Nor was this a case where the local authority had acted negligently in the exercise of a power, as in Yetkin v Newham [2010] EWCA Civ 776 where a local authority had failed to maintain shrubs it had planted which obstructed a pedestrian’s view and thus constituted a foreseeable hazard.

The decision:

The judge dismissed the claim. 

He held that there was a ‘world of difference between a pedestrian stumbling and put an arm on railings to steady him/herself and the sort of considerable force that was very likely to have been involved in this accident. As a result and after careful consideration of the evidence I simply do not see the relevant act or undertaking of responsibility on the part of the Defendant as regards the prevention of the fall to the road below if a cyclist crashed into the railings at speed and with force.’

The judge indicated that he would have found the claimant to be 66% contributorily negligent had he found the defendant to be in breach of its duty of care.

[Posted as a supplement to my Motor Liability Update 2015 course notes]

Great feedback from Asbestos disease training

 Asbestos Disease Training Success!

Daniel Easton, of Leigh Day & Co and I have been delivering training on asbestos related disease claims for the Association of Personal Injury Lawyers for several years now.  So it is gratifying to still get really positive feedback from the delegates.

• 'Very comprehensive and very useful'

• 'Materials are excellent'

• 'Delivered in a clear and concise manner'

• 'Both excellent. Very clear, thorough and clearly knowledgeable and enthusiastic about the course content. Highly recommended'

• 'Absolutely first class - by far the best training course I have experience both in delivery and materials / notes provided'

• 'Very knowledgeable on subject and comprehensive notes'

My heartfelt thanks for these generous comments.

Daniel and I will be presenting the same course in London on 30 June 2015. There are still a few seats spare so book now before they go.  Please contact the ever wonderful

Klair Price

APIL Exhibition and Events Organiser

Tel: 0115 943 5402 • Fax: 0115 958 0885

I have lots of new slides and notes on the latest Supreme Court ruling in Zurich v IEG 2015 UKSC 33. For once, it is really good news for victims of the invidious and almost always fatal disease that is mesothelioma.

Zurich v IEG - The Supreme Court squares the circle for mesothelioma claims

Zurich v International Energy Group Ltd [2015] UKSC 33

On 20 May the Supreme Court delivered a tour de force judgment that is a ‘must read’ for anyone who has any pretensions to expertise in asbestos related disease claims.  The case features a Guernsey based company and the way that independent jurisdiction affects an employer’s entitlement to indemnity from one of its insurers for the claim and costs of settling a former employee’s claim arising out of exposure over a much longer period than was covered by that insurer.

However, the Supreme Court Justices not only reappraise the vexed issue of the what exactly the House of Lords had intended to achieve in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 when it modified the normal 'but for' causation rule in tort law in mesothelioma claims but it went on review the various reinterpretations of that rule by both The House of Lords and the Supreme Court and to deliver a reasonably clear exegesis of the rule as it has now evolved.  If that were not enough, it goes on to export the public policy that informed the Fairchild decision to the contractual liability of an employers’ liability insurer to its insured.  In doing so it (i) bolsters the compensatory entitlement of the employer’s mesothelioma victims, so that the employer is fully indemnified and (ii) mitigates that draconian effect by conferring on the an insurer a right to seek a contribution.

The Supreme Court’s ruling in Zurich v IEA is of seminal importance.  Much of its ratio is directly applicable to claims in England and Wales. 

The Zurich judgment is particularly significant in the following respects: 

First, as already indicated, it reviews the key authorities from the House of Lords in Fairchild and Barker, and the Supreme Court in Sienkiewicz and Durham and it provides further guidance and insights on these key decisions that have seemingly been the subject of endless reinterpretation and analysis.  Hopefully we now have a definitive explanation of what is known as the Fairchild rule, one that seems that reasonably clear and unequivocal. 

Secondly, it has reinterpreted the significance of the House of Lords ruling in Barker v Corus UK Ltd [2006] UKHL 20, which remains good law in England and Wales save to the extent abrogated by s3 Compensation Act 2006 – and this has implications for lung cancer claims – so that if Mr Justice Jay’s decision in Henegham v Manchester Dry Docks [2014] EWHC 4190 (QB) is upheld, apportionment of damages will continue to apply. 

Thirdly, it confirms and explains the innovative approach introduced in Durham v BAI (Run off) Ltd [2012] UKSC 14 to the construction of insurance contracts:  importing the policy considerations forged in Fairchild into a purposive reinterpretation of employers liability contracts so as to give effect to the public policy need for insurance policies to respond to claims, seemingly whatever the actual terminology used in the contract. 

Fourthly, it fixes an employers’ liability insurer who was on risk in any one year (during potentially many years of exposure) with a liability to indemnify the full amount of that employer’s liability to compensate the mesothelioma sufferer.    

Fifthly, where liability to indemnify is established, the Supreme Court has announced a new and radical common law innovation (to do justice to the insurer): the insurer will enjoy a proportionate right of contribution from (i) any other insurer and (ii) the policyholder pro rata for any period of uninsured exposure.

I provide a detailed analysis of this case in BPILS Bulletin issue no 118, which will be in print shortly.

Link to the Supreme Court Judgment in Zurich v IEG: https://www.supremecourt.uk/cases/uksc-2013-0057.html.  The judgments, all of them, reward careful study.  This is our common law working at its best.

The New Law Journal has generously given my latest article, ‘No Through Road’ front cover status. 

The article explains why the Court of Appeal’s decision in Delaney v Secretary of State for Transport [2015] EWCA Civ 172 has much wider implications than the immediate case facts might suggest. It reveals that the writing has been on the wall for successive Governments since 1996 that its national law provision for guaranteeing the compensatory entitlement of motor accident victims was in need of a fundamental overhaul, following the Court of Justice ruling in Bernaldez, (Case C-129/94).  Hitherto I have been a lone voice in my criticism of the Court of Appeal for not applying what has become known as the Bernaldez principle when interpreting the United Kingdom’s flawed implementation of the European directives on motor insurance.  The Court of Appeal has now confirmed in the clearest possible terms that the underlying rationale in Bernaldez, of protecting accident victims, has a general application. In doing so it has departed from its earlier, unanimous, decision in EUI v Bristol Alliance Partnership [2012] EWCA Civ 1267 that Bernaldez was relegated to its own facts.  The Department of Transport’s trenchant insistence that our national law provision in this area is fully compliant with European law is exposed, once again, as patently false.  The Minister must act now or face the prospect of numerous expensive legal challenges as the legal profession wake up to the reality that our national law provision in this area is in a state of shambles.

The full text of the article can be downloaded from the New Law Journal’s subscription website. 

MAJOR MOTOR INSURANCE REFORM IMMINENT

Those lovely people from Barker Brooks have released a video of my presentation on the forthcoming reforms to third party motor insurance requirement. Click on the image below if you wish to view it or alternatively read the paper I presented, following the link in the preceding post.

Our national law provision for guaranteeing the compensatory entitlement of innocent accident victims is in a state of flux.  It contains numerous defects that expose victims to the vagaries of the insurer / policyholder relationship that undermines the original 1930 Parliamentary intention of protecting victims' rights.

Successive governments have scarified the rights of this particularly vulnerable category of citizen, injured motor accident victims, to expediency, in a way that serves the commercial interests of motor insurers.  Fortunately for us, European Union law imposes certain minimum standards that member states are obliged to conform to.

After nearly two decades of inaction, the Government is being forced to address at least some of the failings in its domestic provision.  This is the result to two recent decisions, one from the Court of Justice of the European Union (Damijan Vnuk) the other from the Court of Appeal (Delaney).  See my earlier posts for details.

We are likely to have a further round of consultation, later this year. The Minister for Transport's earlier consultation reviewing the MIB Agreements in February 2013 was abandoned.  We were not informed why but it seems plausible that he simply failed to procure the insurance industries agreement to the proposed reforms.

These reforms will involve changes to Part VI of the Road Traffic Act 1988 and to both the Uninsured  Drivers Agreement 1999 Untraced Drivers Agreement 2003. We cannot count on the reforms addressing all the various failings in our national law implementation of the European directives on motor insurance.

One of these cases achievements is to confirm that the principle that we are all equal under the law; even ministers and insurance magnates.

So it is imperative that every practitioner in this field has a basic knowledge of this superior European law.  It is not possible to advise clients competently on their direct right to compensation from an insurer or the MIB without a basic understanding of European law principles, the key provisions within the directives and an awareness both of the Court of Justice's own interpretation of those provisions. As a profession, we should be insisting on a European law consistent interpretation of our national law whenever an insurer or the Motor Insurers Bureau seek to rely on an conflicting UK provision to avoid their liability. We have been used to comparative law in the context of human rights, employment and health and safety for many years; now, if rather belatedly, it is the turn of motor insurance liability.

CLAIMS CONFERENCE SUCCESS

Congratulations are due to Laura Pollard and all her colleagues at Barker Brooks for staging another very successful and thought provoking Claims Conference last Thursday in Manchester.  A huge thank you to Donna Scully of Carpenters Law for being such a magnificent chairperson.

It was a delight to share the rostrum and to join Louise Ellman MP (who has earned our great respect for her decisive role in chairing the influential Parliamentary Select Committee for Transport) and Mark Stobbs (Director of Legal Policy at the Law Society) in discussing the impact of wide ranging reforms to the personal injury sector of the legal profession.

Click on the image below to view a copy of my paper on the inevitability of major reform to motor insurance.

Bevan in full flow...

The Parliamentary Select Committee for Transport's latest report, Motoring of the future, be accessed here. The committee has also produced some remarkably sensible and well researched reports on the cost of motor insurance.

NEW LAW JOURNAL NEWS

Click here or on the image below to access the full New Law Journal news coverage of the Court of Appeal's important decision in Delaney v Secretary of State for Transport [2015] EWCA Civ 172 which includes some  comment by me. The outcome is exactly as predicted.  My friends at the New Law Journal have asked me to submit an article on this case and on its implications for wider reform, which I plan to submit shortly.