Singh v The City of Cardiff Council

A highway authority’s duty to maintain a highway does not require the removal of every unevenness or defect. The relevant question is whether the particular condition causing the accident constituted a danger to users and whether it caused the injury. Under the Occupiers’ Liability Act 1957, reasonable safety is assessed in all the circumstances, including the likelihood and seriousness of injury, the social value of the activity, the cost of precautions, and whether the danger was obvious. An occupier need not fence against an obvious natural slope where users leaving a path should appreciate the need for care. A common-law duty may arise from a danger created by a highway authority, but constructing a path beside a brook did not itself create the relevant danger on these facts.

The claimant suffered severe injuries after leaving a public footpath, slipping on adjacent sloping ground and sliding into a brook. He alleged that the defendant council was liable under section 41 of the Highways Act 1980, section 2 of the Occupiers’ Liability Act 1957, and the common law.

The alleged highway defects were uneven edging units and a depression in the metalled path. The claimant also contended that the adjacent land should have been fenced. The central issues were causation, whether the path was in an actionable state of disrepair, whether the adjacent land was reasonably safe for permitted use, and whether the council had created a danger at common law.

1. Highways Act 1980. The claimant did not trip on the edging units or slip on the depression. He voluntarily left the path, lost his footing on adjacent ground and slid down the slope. The alleged highway defects therefore did not cause the injury.
2. Separately, the edging defects and approximately 60 millimetre depression did not constitute an actionable danger. The path was about two metres wide, heavily used, and the risks from the defects were relatively low. The relevant inquiry concerned the particular spot and condition said to have caused the accident, not the condition of the area generally. The observations in Jones v Rhondda Cynon Taff CBC and James v Preseli Pembrokeshire District Council were applied. The claim under section 41 failed.
3. The section 58 defence was unnecessary to decide. However, had an actionable defect causing injury been established, the council had not shown on the evidence that it had taken the care reasonably required, particularly given the absence of clear evidence about the applicable inspection regime.
4. Occupiers’ Liability Act 1957. Persons were permitted to use the adjacent land for purposes reasonably incidental to using the footpath. Nevertheless, the council had taken reasonable care in all the circumstances. The likelihood of a person leaving the path, losing footing on the gradient and sliding into the brook was low; the danger should have been apparent; the path had substantial social value; and fencing would impose wider consequences. Requiring fencing would set the standard of care too high. The approach in Edwards v London Borough of Sutton, including the treatment of risk and obvious dangers in Tomlinson, was adopted.
5. The alternative common-law claim failed. The council had not created a hazard by constructing a wide metalled path and footbridge beside the brook, nor had it caused the injury. The principles concerning dangers introduced by highway authorities, discussed in Gorringe v Calderdale MBC and Yetkin v Mahmood, did not assist the claimant.
6. The claim was dismissed. If liability had been established, the claimant’s contributory negligence would have been assessed at 70 per cent.

First-instance judgment. No prior appellate decision is stated in the judgment.