30 September, 2014
The Claimant in the case of McCabe v Cheshire West and Chester BC and BAM Nuttall Ltd fell down a flight of steps on the highway. The accident occurred during the hours of darkness and the Claimant claimed that the streetlight intended to light the area was not working at the time of the accident. The Claimant therefore alleged as a result of the darkness and his lack of knowledge of the steps, he fell and sustained a personal injury.
It was accepted by the Defendants that the street light was not working at the time of the accident. The local authority had contracted the maintenance of the lighting to BAM Nuttall Ltd.
The issue between the parties was whether the Defendants owed a duty of care to the Claimant.
It was found that liability could only be established against the highway authority if it had performed a positive act that created a danger. The highway authority would not be regarded as having performed a positive act where it undertook work to remove a hazard but failed to do so completely. In this case, the Defendants action amounted to non-feasance. The inherent danger was present as soon as the footpath was dedicated to the public. The Defendants had done nothing to create a danger, indeed they had attempted to reduce the danger by providing street lighting.
No duty of care was owed by the Council to the Claimant and if therefore it followed that no duty was owed by the contractor. The claim was therefore dismissed.
Local authorities have discretion to provide street lighting under a statutory power, it is not a duty. The Judge remarked in this case that the presence of the lamp unlit would not cause anyone to rely on it. It would have been obvious that the area was not lit and that it was not possible to see what was ahead. The Judge stated that he would have awarded 50% contributory negligence as it was "foolhardy" to walk in to an area of darkness without taking due care.