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Beaton v Devon County Council C.A.

6 November 2002
The issues

Occupiers Liability Act – cyclists – lighting.

The facts

The Claimant was riding a bicycle in September 1999 with her husband and other members of her family. They were coming back along the way they had gone and went into a disused railway tunnel that formed part of the route. The tunnel had lighting along its roof. The tunnel floor was concrete. It had 2 drainage gullies running alongside each wall. As she cycled through the tunnel one member of her party stopped suddenly and another fell off her bicycle. The Claimant in turn stopped suddenly and put her foot to the ground. The foot went into the gully and she fell. At the spot she fell there was no evidence of any undulation in the gully although there were undulations of approximately 2Ω inches at other points. The Defendant Council provided evidence to the fact that 30,000 cyclists used the tunnel annually and there had been no previous accidents. The Recorder found for the Claimant finding a breach under the Occupiers Liability Act.

The decision

1. The Judge appeared to have approached this case on the basis of a higher duty upon the Council than its obligations were under the 1957 Act. In particular, the Court was persuaded by the Recorder’s use of the word “ensure” when he found that the Council had failed to ensure that such an accident did not occur.

2. This path had been in existence for many years and there had been no previous accidents. It was in good condition. The gullies were close to the wall and there was no reason to believe that they would be a hazard to cyclists.

3. It was not open to the Judge to find that the Claimant had put her foot in a hole since there had been no evidence of such a hole. The Judge had failed to give due weight to the absence of previous accidents. He had misdirected himself as to the proper standard of care. The evidence showed that the risk of an accident far from being considerable was minimal.

Appeal allowed.

For further information in connection with this case, please contact darrensalter@vpinsurance.net or Mr William Audland at audland@12kbw.co.uk

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