Shine v Tower Hamlets

Under the Highways Act 1980, section 66 is permissive and does not itself impose liability for injury caused by an insecure bollard. An insecure bollard is dangerous street furniture, not a defect arising from failure to maintain the highway under section 41. Liability is therefore governed by common-law negligence or, where appropriate, public nuisance. Once foreseeability, causation and breach are established, policy should not withhold negligence liability merely because the defendant is a public authority. The burden of repair must be balanced against the likely harm. A child’s leapfrogging may be reasonable conduct when assessed in context, and did not amount to contributory negligence where a secure bollard presented no serious danger.

Matthew Shine, aged nine, was injured when an insecure bollard installed by the London Borough of Tower Hamlets moved as he attempted to leapfrog it. The Romford County Court found that children might foreseeably leapfrog bollards, that the bollard had not been properly maintained, and that its insecurity caused the injury. The judge rejected contributory negligence.

The claimant appealed. The issues before the Court of Appeal were whether the claim arose under sections 41 or 66 of the Highways Act 1980, whether the authority was liable in negligence, and whether the claimant had contributed to his injury.

1. The appeal was dismissed. The Court of Appeal upheld the county court’s result, although on a significantly different basis.
2. Section 66(2) and (3) of the Highways Act 1980 are permissive provisions. They authorise a highway authority to install barriers, rails, bollards and similar objects for safeguarding highway users. They do not themselves impose liability to an individual for injury caused by faulty installation.
3. The complaint concerned an insecure bollard, namely street furniture introduced onto the highway, rather than the nature of the highway or a failure to maintain it. Section 41 therefore did not apply. The distinction was supported by Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, para 51, and Skilton v Epsom and Ewell Urban District Council [1937] 1 KB 112. In modern terms, liability for injury caused by such an object was to be determined by negligence or, where applicable, public nuisance.
4. The requirements of negligence were established. It was foreseeable that a child might leapfrog a bollard, and the insecure condition of the bollard caused the injury. The policy question fell within the fair, just and reasonable limb identified in Caparo v Dickman. The relevant balance was between the likely severity of the accident and the cost or burden of taking precautions, as explained in Bolton v Stone. Repairing this bollard was an ordinary precaution which the authority’s own policy recognised and which its witness accepted should have been taken. Liability therefore imposed no undue burden.
5. There was no contributory negligence. A securely fixed bollard presented no serious danger in the circumstances, and the claimant’s age, proficiency and general behaviour supported the conclusion that leapfrogging it was reasonable and expected conduct. His polite agreement that he should not have done so was not an admission of fault.
6. The court left open difficult borderline questions concerning whether leapfrogging a bollard may constitute ordinary use of the highway for section 41 purposes. Those questions should be decided in a case where the outcome turns on them and according to the facts of the particular case. The court also did not express agreement with the view taken in Gough v Upshire Primary School.

• Court of Appeal (Civil Division) — On 9 June 2006, the court dismissed the appeal and upheld the county court’s result on a different legal basis: [2006] EWCA Civ 852.
• Romford County Court — His Honour Judge Wulwik made findings that leapfrogging was foreseeable, the bollard had not been properly maintained, its insecurity caused the injury, and contributory negligence was not established.