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Shine v Tower Hamlets London Borough Council, Court of Appeal, 9 June 2006

14 July 2006
The issues

Bollards; Highways Authorities liability; street furniture; whether Local Authority liable for accident caused by child leapfrogging wobbling bollard.

The facts

In October 2001 the Claimant, Matthew Shine, was nine years old and was walking in Bethnal Green together with his mother and two young relatives. The London Borough of Tower Hamlets had installed a number of bollards on the footway, the purpose being to prevent parking on the pavement and also to protect pedestrians from danger from traffic. Matthew Shine went up to one of these bollards and attempted to leapfrog it. The one he chose was insecure and under his leapfrogging it wobbled and he fell off and injured himself. The Judge found that the Local Authority was in breach of its statutory obligations finding that it was foreseeable that children might attempt to leapfrog bollards and that there was a failure to maintain the bollard properly before the accident occurred. The Judge reached no view as to negligence. The Local Authority appealed.

The decision

The claim for breach of statutory duty arose under the Highways Act 1980 both Section 41 and Section 66.

Section 66 dealt with the provision of guards and rails for publicly maintainable highways. It had been argued for the Claimant that it imposed a statutory duty. The section had all the indications of being a permissive section permitting the highway to install such barriers or street furniture as they think were reasonably necessary. It did not ground any liability in the case of injury emanating from such a barrier or fence to an individual however.

The complaint under Section 41 was to the effect that there was an insufficient hole in the highway into which the bollard had been placed and which caused it to be insecure. That was an artificial analysis. The complaint was that the bollard was insecure and that was a complaint about street furniture. It was not a complaint about the nature of the highway, much less a complaint in respect of a failure to maintain the highway. The fact that the hole was inappropriate for the bollard was not a failure to maintain but a failure properly to ensure that the bollard was safe and upright. Section 41 was therefore not engaged either.

The claim as to negligence had been dealt with in a very minor way by the Judge. The elements on the Judge’s findings were however clearly established. He had held that it was foreseeable that a child was likely to leapfrog one of the bollards. He also found that it was the insecure state of the bollard and nothing else that caused the injury. It had been argued that it was unreasonable or placing an undue burden on the Local Authority to pay damages to someone injured by one of its bollards not being in a stable state. The Local Authority would be penalised for failing to do something that it had accepted that it was going to do and should have done in any event. It had a policy of inspecting the bollards and a policy of putting them into a safe state if they were found to be insecure.

In Bolton v Stone, the House of Lords had indicated that there had to be a balance between the likely severity of the accident and the cost of putting it right before imposing a liability. Applying that balance in this case it seemed clear that the balance came down firmly on the side of saying that it would not be an unreasonable burden on the Local Authority to have taken the precaution in this case of getting their bollard into its proper state.

As to contributory negligence that the Claimant’s evidence was inconsistent, the Judge found that it was to the effect that he had no substantial reason to fear danger should he leapfrog over a secure bollard and that in the context of his age for efficiency and general behaviour that was a reasonable and expected thing for him to do. To the extent that the Claimant agreed that he should not have been doing what he did, it appeared to be no more than the polite agreement of a well behaved child and not any sort of admission of fault.

Appeal dismissed and decision upheld on the cross-appeal.

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