Personal Injury - Negligence

Ankle : Breach of statutory duty : Footpaths : Tripping and Slipping : Dangerous Footpath : Dangers : Dangerous Footpaths : Pavements : Stumbles : Falls : Ankle Injuries : Weight of Evidence : Uneven Surfaces : Photographic Evidence

Trial judge had erred in his determination of whether a footpath had been dangerous. There had been clear evidence to support the appellant’s claim that he had suffered an ankle injury as a result of the dangerous condition of the footpath surface.

The appellant (M) appealed a decision dismissing his claim for negligence and breach of statutory duty against the respondent (L) following a stumble that had occurred on a footpath. M’s case had been that whilst he had been jogging along a footpath he had suffered an injury to his ankle through stumbling on an uneven surface. In support of his case he had filed a number of photographs of the scene, and had adduced an expert’s report which had been to the effect that the path had been unfit for its purpose. Determining the issue of liability, the judge had found that there had been uncertainty as to the location of the accident, and that it had not been clear how the injury had occurred from M’s description of events. The judge had also been influenced by the fact that there had been no previous recorded accidents in the area, despite the path being used by a number of joggers and pedestrians, and concluded that the part of the footpath to which the action had related had not been proved by M to have been dangerous. He accordingly dismissed the claim. M argued that the judge had misread the evidence and had given insufficient weight to some parts of it and inappropriate weight to other parts, which had lead him into error as to where and how the accident had occurred and on his determination of whether, on the evidence, it could have been said that the condition of the footpath had been dangerous.

HELD: There had been a number of factors which should have led the judge to conclude that the evidence had established that the footpath had been dangerous. There had been evidence that had established that M had stumbled and suffered an injury, and there had been a clear indication by M as to where the stumble had occurred. Further, whilst not conclusive, a prompt response by L to repair the area had gone some way to supporting the claim. More crucially however had been photographic evidence of the scene just after the accident which had show clearly the unevenness of the surface and had given a picture of danger. That had been a danger that had been acknowledged in an expert’s report. The judge had been sidetracked from what had been clear in the photographs by relevant, but not central issues, namely lack of reports of previous incidents at the area. In the circumstances, whilst the judge had adopted the correct test to be applied, he had erred in his application of that test to the facts and the uncontradicted evidence, Mills v Barnsley BC considered.

Appeal allowed:

Kenneth Maguire v Lancashire County Council (2004)

CA (Civ Div) (Auld LJ, Gage LJ) 11.11.2004

“Lawtel”: 22.11.04