20 April, 2009
The claimant sought damages for an accident when he slipped on pigeon droppings on the public highway.
Forbes Solicitors acted for the First Defendant Wigan Council who were the relevant Highway authority. The Claimant alleged negligence, breach of the Highways Act and nuisance for failing to clear the droppings from the pavement and failing to take proper remedial measures to prevent pigeons from roosting on adjoining roof tops. The claim was raised in the alternative against the owners of the adjoining shop where the pigeons were said to roost.
The council had given advice to shop owners on methods of preventing pigeons roosting but work carried out was paid for by those shop owners. Casualtop ( the Second Defendants) had not carried out any measures.
The Claimant alleged that the persistence of the problem meant that droppings should be considered part of the fabric of the highway and that a duty was owed under Section 41 Highways Act 1980. The judge rejected that submission. Goodes v East Sussex County Council applied.
In relation to nuisance, the case of Wandsworth London Borough Council v Railtrack PLC was distinguished. The amount of pigeon droppings were not substantial in volume or number. There was no real source of danger.
In any event the Council had a regular cleaning system which involved sweeping on a daily basis with a mechanical sweep once a week.
The claim against the Council was dismissed.
The court also absolved the second defendant from responsibility. Their management of the building did not give rise to a duty to prevent the unpreventable. The fouling happened when the pigeons were in flight.
The Highways Act duty is essentially to keep the fabric of the Highway in good repair and this does not include transient defects. While snow and ice have been brought within the statutory framework since Goodes other categories of passing hazards may not be recoverable in law. The implementation of regular cleaning systems by public authorities makes it additionally difficult for Claimants to broaden the categories of Highway liabilities.
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