Suffolk County Council v Samantha Lyall

A highway authority may owe a common-law duty concerning a structure which it has installed on an existing public right of way, even where no statutory duty arises in respect of an omission to maintain the highway. Installing a boardwalk may constitute a commission where it creates or materially contributes to a foreseeable slipping risk. The relevant question is whether, in all the circumstances, reasonable precautions should have been considered and taken. In a damp and shady location, the authority should assess the need for anti-slip measures. The absence of a statutory duty under section 41 of the Highways Act 1980 does not, by itself, prevent a common-law duty arising by a different route.

The claimant suffered a broken ankle after slipping on a wooden boardwalk forming part of a public right of way through Binney Woods. The boardwalk had been installed by the defendant highway authority in 2015. The surface was damp and shady, with mud, fallen leaves, moss and algae.

A Circuit Judge rejected liability under section 41 of the Highways Act 1980 and rejected a negligence claim based on failure to inspect. He nevertheless awarded damages on the basis that the defendant should have considered installing anti-slip measures when constructing the boardwalk. The defendant appealed, arguing that the claim concerned an omission and that no common-law duty existed. The central issue was whether installing the boardwalk transformed the case into one involving a foreseeable risk created by the defendant.

1. Appeal dismissed. The Circuit Judge correctly rejected the statutory claim. The public right of way was not a highway to which the relevant statutory duty applied, and there could be no duty in respect of an omission simpliciter.
2. The omission and commission distinction remained material. McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 supported the principle that an occupier of land subject to a public right of way is not generally liable for failing to maintain or repair the route. Stovin v Wise [1996] AC 923 similarly distinguished omissions from positive activities creating risks of harm.
3. Gautret v Egerton [1867] LR 2 CP 371 was distinguishable. In that case, the bridge had fallen into disrepair after the right of way arose. Here, the right of way pre-dated the defendant’s installation of the boardwalk. The defendant had therefore created a foreseeable risk by undertaking that positive activity.
4. The common-law duty was not a higher standard of care imposed through negligence. It was a duty arising because the defendant’s installation of the boardwalk created or materially contributed to the risk. The foreseeable risk required consideration of anti-slip measures, particularly in a damp and shady setting. Their cost was modest, and no risk assessment or other reason for omitting them had been evidenced.
5. Rollinson v Dudley MBC [2015] EWHC 3330 (QB) supported rejection of the statutory claim concerning moss, algae, lichen and similar vegetation. The finding that the accident was foreseeable was supported by the evidence and common sense. The judgment below was upheld.

• High Court (King’s Bench Division): appeal from an order of HH Moloney KC, sitting as a Circuit Judge at Ipswich County Court, awarding the claimant £12,424.83. Appeal dismissed.