Heath McCabe v (1) Cheshire West & Chester Council (2) BAM Nuttall Limited Chester County Court HHJ Halbert 26/06/2014
Where a local authority failed to maintain a streetlamp intended to illuminate a flight of steps on a public footpath, it owed no duty of care to a member of the public who fell down the steps. The local authority had a discretion to provide streetlamps under a statutory power not a duty.
At 11pm on 22 October 2009, the Claimant was walking his dog in the local village and he walked along a footpath which connected a cul-de-sac and a road which he had not walked along before. Along this footpath, there was a drop of 10-12feet where concrete steps had been installed. The installation of the steps had not been carried out by the council. At the head of the steps, there was a streetlamp which, at the time of the accident, was not working. This streetlamp had been provided by the council. The Claimant walked on in the dark and fell down the steps sustaining injury.
Apart from the usual issues surrounding how the accident occurred and the extent of contributory negligence, the main issue was the question of whether the local authority owed a duty of care to the Claimant. The Defendant submitted no duty was owed as s97 of the Highways Act 1980 merely provided the local authority with a power to provide street lights not a duty and therefore a failure to exercise that power did not give rise to a cause of action. In cases of this kind the court are asked to decide whether the local authority’s actions amounted to nonfeasance or misfeasance.
HHJ Halbert ruled that this was a case of nonfeasance. The inherent danger was present as soon as the footpath was dedicated to the public. To the extent that the local authority provided lighting was an acknowledgement by the local authority that a danger existed and an attempt was made to reduce that danger. The presence of the streetlamp lit or unlit did nothing to increase the danger. A failure to maintain the lamp was nonfeasance not misfeasance and as a result, the Defendants were not liable.
HHJ Halbert was also asked to rule on contributory negligence and stated that had the Claimant been successful, he would have found the Claimant 50% liable for his injuries on the basis that the Claimant walked on the footpath, knowing he could not see what he was walking on or the nature of the terrain in front of him and to do so was foolhardy and significantly causative of the accident.