5th July 2007

Council liable after claimant falls in ditch

The claimant was walking home through a rural area after attending a party. It was midnight and pitch dark as there was no street lighting.

As part of the construction of the road, it was necessary to build a concrete strengthening device to support the road. This created a structure alongside the grass verge at the side of the road with an unguarded drop of about three foot. A manmade ditch was situated within the grass verge. A footpath deviated to the left, away from the roadside, to take pedestrians away from the grass verge and the ditch. The claimant fell into the ditch, breaking his leg, when he decided to walk along the grass verge rather than follow the footpath.

The defendants said that given the footpath had been built in order to direct pedestrians away from the hazard, it was not foreseeable that anyone would walk on the grass verge. They also argued that the cost of providing a guard or fence to every potential hazard would be too much and that it was unreasonable to expect them to do so. After the accident, at a cost of £120, guardrails were erected at either side of the hazard.

The judge held that the structure was unique and created a sheer drop of three foot. Because the footpath was below the level of the road it was more secluded and it was therefore foreseeable that pedestrians would chose to stay near the road at night and walk on the grass verge. The judge held that the defendants had failed in their common law duty of care to the claimant as a pedestrian. However, because the claimant should have taken a torch, knowing that he would be walking home late; because he could have kept to the path; could have crossed the road or could have walked on the other side, the judge decided the claimant was liable for one third contributory negligence.

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