The High Court considered this issue In the case of Paul Singh v City of Cardiff Council [2017].

Paul Singh was walking home in the early hours of the morning of 10 December 2011 along a path that led to a footbridge over Llanishen Brook in Cardiff. At some stage he fell from the path and went down into a brook where he remained overnight and was found the following morning with severe injuries.

He sued the Council alleging that the accident was caused by a breach of their statutory duty in failing to maintain the footpath, failing to take reasonable care to ensure that he was reasonably safe when using the footpath and creating a danger, namely a footpath and footbridge over a brook. The Council denied liability.

Background
Mr Singh had been out with socialising with friends in the evening of 9 December 2011 and over the course of the evening had drunk six or seven pints of lager and two liqueurs. At about 1.30 am he was walking home. His route was along a footpath and over a footbridge that he had used many times in daylight and at night time and in all weathers. The temperature at the time was around freezing point. It had not been raining. There was some natural light from the moon and in the general area although a lamppost near the footbridge was not working. Mr Singh fell from the path into the brook. He was in the brook for about eight hours overnight and was found the next day when the emergency services were called. He was taken to hospital with severe injuries.

The Judge after hearing the evidence concluded that Mr Singh had ceased to be on the footpath just before he reached the footbridge. He had stood on a sloping gradient adjacent to the footpath and he fell down the steep slope on his back entering the brook feet first. How had this happened? He had been walking on the left hand part of the footpath towards the footbridge. He was not walking on the edge where some edging units were and he was not walking in the middle of the footpath. He was walking between the edging units and middle of the path on the left hand side of the footpath. Mr Singh says that he heard a noise on his left hand side. It sounded like a child or a woman or an animal in distress and he stopped to see if he could help. He heard the noise coming from bushes on his left hand side. He stopped and turned his head and slipped off the path. On the balance of probabilities Mr Singh had voluntarily left the footpath and stood on the ground adjacent to the footpath. He then lost his balance and fell backwards and slid down the slope on his back feet first.

Following the incident the Council installed some railing in the area where Mr Singh stopped and left the path when he fell. Individuals can still access the area of ground where the incident occurred by going around the edge of the railing.

Against that factual background the following three issues arose:-

1 Was the accident caused by a failure by the Council to maintain the highway (in breach of its duty under Section 41 of the Highways Act 1980)?

2 Was the accident caused by a failure of the Council to take reasonable care to ensure that Mr Singh was reasonably safe when using the land adjacent to the footpath (for the purpose for which he was permitted to be there under S2. of the Occupiers Liability Act 1957)?

3 Was the Council negligent under the common law?

The High Court Decision
The Judge held that in this case any alleged defect in the highway did not in fact cause the injury suffered. Mr Singh had voluntarily stepped off the footpath on to the ground adjacent to (but not part of) the highway. The injury suffered was not caused by any alleged defect in the footpath. The edging of the footpath was broken and uneven, but the Judge decided that the broken and uneven edging units did amount to a state of disrepair giving rise to a breach of duty under the Highways Act. The footpath is wide and there is ample room for persons to pass over the footbridge without stepping on the concrete edging unit. The risk of anyone tripping over the edging units at that point on the footpath and falling down into the brook is very low. It was not a pothole or a hazard capable of tripping someone. There was no breach of duty of the Highways Act.

The considerations the claim under the Occupiers Liability Act concerned the duty under S.2 to take such care as is reasonable in all the circumstances to see that a visitor will be reasonably safe in using the land for the purposes for which they are invited or permitted to be there. The Judge held that the purposes for which persons are invited or permitted to be present on the adjacent land is for purposes reasonably incidental to the use of the footpath. In terms of the risk of the likelihood of injury this is low. The risk of someone stepping off the path and then falling on the slope and then sliding into the brook was low. There had been no reported accidents in relation to the footpath which had been used many hundred thousands of times for over at least 20 years before this accident. If the risk did materialise then the injury may indeed be severe. The cost of fencing which would have prevented the risk here was low (the cost of the fencing that was ultimately installed was approximately £1,875.00). But if the duty required this area of the land to be fenced then the likelihood is that other areas may also need to be fenced. There is real social value of allowing people a means of travel to and from the estate on either side of the brook and the consequent use of adjacent land for purposes reasonably incidental to the use of a footpath. The Judge decided that if people are using the footpath and step off it they would or should realise that they are leaving the surface of the footpath. They should be aware that there is a brook next to the area and they should appreciate the need to take care if they choose to leave the footpath. In all the circumstances it would set the standard of care at too high a level to require the area of adjacent land to be fenced. In this case Mr Singh willingly accepted the risks. He chose to leave the footpath. He was very familiar with the footpath and had used it by day and night many hundreds of times. He knew the adjacent land led to the brook and whilst there was no light working there was nearly a full moon and no obstructions or visibility. There was no breach of duty of the Occupiers Liability Act.

A general common law duty of care applies, but the Judge held that the Council did not create a hazard or introduce a danger by creating the footpath and footbridge. The footpath was next to a brook but the introduction of a two metre wide footpath with ample room for users leading to a footbridge over a brook which had guard rails the length of the footbridge itself did not create a hazard or a danger. There was no failure to take reasonable care on the part of the Council by constructing the footpath and not erecting a fence to prevent persons stepping off of it. The footpath was intended to be used as a means of passage over the brook and between estates. The footpath itself did not create the hazard that occurred and did not cause the injury. The Council had not been negligent.

The Council were not liable for Mr Singh’s injuries.