02 March, 2020
S v Calderdale MBC
The Claimant alleged she fell in a pothole and sustained an injury whilst walking along a lane/track, which led to open fields, parkland and residential houses. The track was unmade with a loose gravel/ stone surface.
The Claimant alleged that the Defendant was in breach of its duty as the owner and occupier of the path under s.2 Occupiers' Liability Act 1957. The Claimant pleaded that the Defendant was under a duty ensure that the lane was maintained in a "reasonably safe condition". The Defendant did not dispute that it owed a duty to the Claimant as occupier but contended that it had a duty to take such care as was in all the circumstances reasonable to see that the Claimant was reasonably safe in using the lane.
The Judge accepted that the Claimant had fallen, although was somewhat puzzled by the alleged mechanism of the fall.
The central question before the Judge was whether the alleged defect represented 'a real source of danger'. The Judge commented that there has to be a reasonable foresight of harm to a reasonable person, which does not set too high of a standard pursuant to the case of Mills v Barnsley Metropolitan Borough Council  1 P.I.Q.R P291.
The Judge observed that the rough track was located in a rural area, which was not highly populated. There had been no recent previous complaints about the track and despite the Claimant's sister who lived alongside the track contending that it was not safe to walk on, she had not complained to the council. The Judge noted that he would reasonably have expected her to have complained if she had considered it dangerous. The Judge concluded that the reality was that this was a typically constructed rural track, which did not pose a reasonable source of danger to pedestrians and dismissed the claim.
On behalf of the Defendant, we carefully obtained witness evidence, Google images and photographs to demonstrate to the Court that the path was in keeping with the rural setting and the type of traffic to be expected. The Judge was convinced by the evidence and reminded the Claimant that the standard to be expected is not that of a "bowling green" (Littler v Liverpool Corporation ).