Chloe Jenkins reports on the successful defence of a claim against the Yorkshire Dales National Park Authority and North Yorkshire County Council brought by a claimant who fell whilst crossing a set of stepping stones in the River Cover in the Yorkshire Dales National Park.
The accident in Wilkes v (1) Yorkshire Dales National Park Authority (2) North Yorkshire County Council occurred on 10 Juy 2015.
The defendants were jointly represented by BLM; NYCC is the highway authority for the public rights of way in the National Park, however pursuant to an agreement under sections 101 and 11 of the Local Government Act 1972, YDNPA agreed to discharge NYCC’s statutory duties under the Highways Act (HA) 1980 in respect of rights of way, which included the obligation to maintain the surface of the highway under section 41 HA 1980.
The defendants did not dispute that the stepping stones were a highway maintainable at public expense.
The stepping stones on which the claimant slipped had been replaced by YDNPA in 2008; the previous domed, smooth limestone boulders had been scored and treated over time, but were replaced with flatter, rougher sandstones (which were not scored or treated). In replacing the stones, YDNPA followed guidelines produced as a result of a study they had commissioned in 2001 and submitted the relevant application to the Environment Agency.
The claimant’s pleaded case was that the stones were “slippery and their texture compromised” because of “the presence of algae and/or the chemical effects of the same on the fabric of the stone itself” and because of “deposits from overhanging trees and/or the water itself”.
The claimant initially pleaded that scoring on the stones gave “algae an ideal location in which to grow” but part way through the claim, served amended particulars in which this allegation was struck through, leaving the diametrically opposite argument that the stones should have had some kind of textured surface to provide extra grip.
The claimant acknowledged he knew the nature of the stones and that he had to use them regularly in his work (he was not employed by YDNPA or NYCC).
The allegations against the defendants were broad; the claimant pursued causes of action under section 41 HA 1980, section 2 of the Occupiers Liability Act (OLA) 1957 and regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations (WHSWR) 1992, and in negligence (for alleged nonfeasance and misfeasance) and nuisance.
His factual case was that the defendants should have cleaned algae from the stones, installed an ‘anti-slip’ surface on the stones, installed a handrail, replaced the stones completely with a bridge, pruned trees to prevent leaves falling into the river and that warnings should have been prominently placed that stepping stones in a river might be slippery. He also alleged the defendants should have placed the stones at even distances, and not placed them too low in the water, which he alleged allowed algae to grow.
The defendants considered the claimant’s case unsustainable under each cause of action; stepping stones in the river constituted an obvious risk and the Courts have long since determined that there is no legal duty to protect a person against the obvious risks associated with the voluntary use of rural / remote landscapes.
By the start of the liability only trial, the claims under section 2 OLA 1957 and regulations 5 and 12 WHSWR 1992 and as regards nonfeasance and nuisance had been abandoned. The claimant had also conceded there was no duty to remove algae under section 41 HA 1980.
The claim was therefore limited to section 41 HA 1980 in relation to the physical condition of the stones themselves and alternatively in negligence, based on the defendants’ alleged misfeasance.
The claimant argued that the stepping stones were dangerous in four respects: the surface was slippery; the stones had shifted over time leaving a significant step down between two of the stones; one of the stones was dangerous as a result of its domed nature and the gap between the stones was on the one hand too wide to allow the claimant to step safely from one stone to another and on the other was too narrow to prevent injury.
The defendants’ case was that their duty under s.41 HA 1980 was to keep in repair the fabric of the highway, which it had done. The duty did not extend to its construction or design, and there is no duty to remove algae. As such, the claimant had to show there was a defect in the fabric of the stepping stones which rendered them a real source of danger, having regard to the condition in which members of the public would expect to find stepping stones in a remote river.
The claimant accepted that it was the build-up of algae that caused him to fall. The defendants therefore argued that as there was no evidence of, and no allegation of an underlying defect in the fabric of the stones on the claimant’s own evidence, the claim under s.41 must fail.
In respect of the alleged misfeasance, the defendants’ case was that no danger had been created when the stones were replaced in 2008; it was appropriate for YDNPA to follow the guidelines from the 2001 study in installing the stones. They were not negligently installed and were an obvious improvement on the previous stones.
Stepping stones in a river in a natural environment are inherently slippery and the stepping stones in question constituted an obvious risk in a rural landscape, from which there is no duty at common law to protect.
Recorder Barnett found:
“[t]here is an obvious inherent risk with use of stepping stones, which is that algae, sap and moss may form when the stones are submerged or in areas protected by trees, which can make them slippery”.
He also found that the claimant knew the river and the stones well and that:
“the standard of vigilance expected from hill walkers and others, has to be adapted to the conditions, the social utility and the degree to which the user is familiar with the hazard”.
In relation to the s.41 HA 1980 claim, the claimant failed to prove there was anything in the underlying condition of the stepping stones that made them dangerous. The claimant’s principle submission that the stones were situated too close to each other, so as to not comply with the 2001 guidelines and therefore making them dangerous was dismissed. Recorder Barnett found that the placement of the stones complied with the guidelines, which did not set a minimum gap.
As regards the alleged misfeasance, Recorder Barnett found the decision by YDNPA to replace the stones in 2008 “was carefully considered and resulted in an improvement upon the existing stones that required attention”. Again, he found YDNPA had appropriately taken account of the 2001 guidelines in replacing the stones and he dismissed all of the claimant’s criticisms regarding their shape and placing.
Against those findings, Recorder Barnett was bound to dismiss the claim. He also observed that even if the claimant had been able to make out a claim under s.41 HA 1980 or in misfeasance, the claim would have failed for want of causation; the claimant failed to satisfy the ‘but for’ test as his risk of slipping was inevitable.
What this means for you
This is useful example of the courts limiting the scope and extent of the duty owed by defendants under the section 41 HA 1980 and for misfeasance in the context of activities in rural landscapes. Absent special or particular facts, an adult who chooses willingly to take a course of action in such landscapes which gives rise to an obvious degree of risk will find there is no means of recompense if the risk materialises and injury results.
Chloe Jenkins is an associate at BLM. Together with Zurich and Jack Harding of 1 Chancery Lane, the firm acted for North Yorkshire National Park Authority.