"In my judgment the risk must have been obvious"

News

29 February, 2008

Forbes recently represented Rossendale Borough Council where the Court held that the Council was not to blame for injuries suffered by the Claimant who voluntarily chose to run down a dark alleyway.

The Claimant collided with a steel post and dislocated his shoulder when he chased a would be vandal down an unlit alleyway. The steel post that was approximately 3.5 feet high and positioned on a raised step.

The Claimant brought his claim against the Council pursuant to the Occupiers Liability Act 1957 and/or negligence.

The Deputy District Judge found that it would be foreseeable that the Claimant or others would use the alleyway in the dark, the post was a danger and that the alleyway was inadequately lit.

However, the Claimant's evidence was, "I chose to give chase. Some people would let them run off. I went into an area that was pitch black I could only just make out the youth in front of me"

The Defence of "volenti" was successfully pleaded. This is commonly called consent or voluntary assumption of risk. If successful, it is a complete bar to recovery but it is often very difficult to prove. The Judge held that: -

"The Claimant knew that the area was over grown with weeds and bushes and knew that the fly tipping of rubbish was prevalent. He said he did not appreciate the risk but in my judgment the risk must have been obvious.

I do not accept that it was necessary for the Claimant to have the precise knowledge of the existence of the steel post. The risk he was taking was running in the pitch black in an area that he knew was likely to have obstacles".

The claim was dismissed and the Claimant was ordered to pay the costs of the Council.

For further information please contact Elizabeth Bower at our Blackburn office, Marsden House, 28 Wellington Street (St. John's), Blackburn, BB1 8DA. Tel: 01254 662831.

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