Sheila Foggoa v Murphy & Sons Limited

A statutory or industry code may inform the common-law standard of care, but compliance does not create an absolute duty and departure is not automatically negligent. The controlling question remains whether the defendant acted reasonably in all the circumstances.

Site-specific risks must be assessed flexibly. Industry practice is relevant, although not conclusive. An appellate court should not interfere where the first-instance judge’s conclusion that the precautions were reasonable is properly supported by the evidence.

In a consecutive chain of events, causation is assessed realistically by identifying the dominant or effective cause of the injury. Material-contribution authorities concerning concurrent or competing causes do not govern such a case.

The claimant, as executrix of Barry Foggoa’s estate, appealed the dismissal of claims in negligence and public nuisance arising from Mr Foggoa’s fall into a street works trench. The County Court held that the pedestrian route, board and barriers complied sufficiently with the applicable Code and that no breach or causation had been established.

Before the High Court, the claimant sought permission to rely on fresh evidence, amend the grounds of appeal and appeal the decision. The central issues were whether the Code required closure of the footway, wider boards or stronger barriers, whether the fresh evidence affected the result, and whether the causation analysis was correct.

1. Fresh evidence and amendment. The court permitted the licence material to be considered de bene esse, but held that it did not materially undermine the trial judge’s findings. The reference to footway closure had several possible meanings and did not establish that the local authority had required closure of the relevant footway. The application to rely on the photographs failed under the principles in Ladd v Marshall, since they could have been produced at trial and their provenance and technical significance were unclear.
2. Construction and effect of the Code. The Code informed the common-law standard of care. Prima facie, compliance indicated reasonable conduct, but non-compliance would not necessarily establish breach and departure could be justified by good and cogent reasons, applying R (Munjaz) v Mersey Care NHS Trust. The court had to determine whether the precautions were reasonable in the circumstances.
3. The Code was not to be applied mechanically. The 1.5-metre footway width was expressed as an ideal, whereas 1 metre was an absolute minimum. The trial judge was entitled to find that the 1.2-metre board substantially complied, particularly because the agreed expert evidence did not show that pedestrian safety was compromised.
4. The standard barriers were not shown to be unreasonable. The Code did not expressly require barriers to withstand the lateral force of a person falling against them. Industry practice was relevant and none of the experts criticised the use of such barriers. There was no evidence that the accepted industry standard was plainly unacceptable. The trial judge was therefore entitled to find no breach.
5. The argument concerning temporary covers outside the barriers was not open on the grounds of appeal. In any event, the evidence and assumed risk assessment did not establish that covers were reasonably required.
6. Causation. Had breach been established, the claimant would have succeeded on the causation issue. This was a consecutive chain of events, not a case of competing or concurrent causes. The dominant or effective cause of the fracture was the impact at the bottom of the trench, rather than the initial slip. The appeal was nevertheless dismissed because no breach of duty was established. The applications to adduce fresh evidence and amend the grounds were dismissed; permission to appeal was granted; and the appeal was dismissed.

• High Court (King’s Bench Division): appeal from the dismissal of the claim by HHJ Freedman in the County Court at Newcastle on 2 May 2024. Permission to appeal was granted, but the appeal was dismissed.