EWJ August 62 2025 web - Journal - Page 7
… Accidents Can and Do Happen
Without Fault on the Part of Anyone
by David Williams - www.dacbeachcroft.com
(b) Defendant 2 who were sub-contracted by
defendant 1 to carry out the work;
Overview
There is a general belief that whenever an accident
occurs, particularly when it causes an injury,
somebody is at fault.
(c) Defendant 3 who were responsible for the day-today operation of the works pursuant to a sub-contract
with defendant 2.
However, the courts remain prepared to find to the
contrary and in the recent case of Foggoa v (1) J Murphy & Sons Ltd (2) Applebridge Construction Limited (3)
Butlers Construction N.E. Limited [2025] EWHC 1246
(KB) in which we were instructed to represent the
second defendant, the High Court acknowledged that
there is not always someone at fault. As the judge, the
Honourable Mrs. Justice Dias DBE put it, "… it is a sad
fact of life that accidents can and do happen without fault on
the part of anyone."
It was not disputed that the equipment guarding the
trench had been provided by defendant 1 and installed by defendant 2. It was also not in dispute that,
although it was defendant 3 who carried out the works
on a daily basis, both defendant 1 and defendant 2
had supervisors on site. Apportionment of liability as
between the defendants in the event of a successful
claim was in issue, each party obtaining expert
engineering evidence in relation to the claim.
Background
Mr Foggoa, then aged 70, was out walking his dog
when he slipped while walking over a board covering
a trench which had been dug across the footway on
the instruction of Northern Powergrid to facilitate the
laying of underground power cables. It was not in dispute that the trench was about 400mm wide at the accident location and about 500mm in depth. The
board itself was bolted to the footway and measured
1.2m x 800mm. Barriers had been placed to either
side of the board which were 2m long and 1.2m high
with rotating feet. The trench to either side of the
board outside the barriers was uncovered.
The trial
At trial, the judge identified five major contentions in
respect of the alleged breach of duty:
(a) The footpath should have been closed off as it did
not offer safe access;
(b) A wider board could and should have been used;
(c) There was a dangerous gap between the edge of
the board and the barriers;
(d) The barriers were too lightweight and should have
been able to prevent the claimant from falling into the
trench;
Mr Foggoa was, due to a medical procedure some
years before, unable to bend his right leg. According
to Mr Foggoa's account of the accident, he stepped on
to the board with his left leg and placed his left hand
on the left-hand barrier to give himself some stability
as he did so, but his foot slipped due to the presence
of ice or frost on the surface of the board, causing him
to fall laterally to the right. The barrier on that side
was insufficiently strong to withstand the lateral force
of his fall and his right leg went through a gap between the board and the barrier, and he fell into the
trench, fracturing his femur in the process, as well as
sustaining other injuries.
(e) The guarding around the trench was generally
inadequate.
The trial judge held that the Safety at Street Works
and Road Works Code, whilst providing helpful guidance, was not conclusive and that minor deviations
from the code did not mean that there had been a
breach of duty; the trial judge took the view that the
ultimate question for the court was whether, in the circumstances as they existed at the time of the accident,
the passage across the walkway was made and kept
reasonably safe for pedestrians. In other words, were
they exposed to a foreseeable risk of injury which
could reasonably have been prevented by further and
additional measures being put in place? The trial
judge rejected the claimant's allegations of negligence
on the basis that:
The claim
Prior to the commencement of proceedings Mr
Foggoa sadly died for reasons unrelated to this accident and the claim was brought by his widow as executrix of the estate (the claimant). The claim was
brought in both public nuisance and negligence
against three defendants:
(a) The temporary structures put in place permitted
free, unimpeded access along the road at the junction
and it was possible to maintain safe pedestrian access
on the footway. The local authority did not stipulate
that the footpath should be closed and the experts did
not suggest this. There was accordingly no imperative
for the footpath to be shut off.
(a) Defendant 1 who contracted directly with
Northern Powergrid to carry out the work;
EXPERT WITNESS JOURNAL
5
AUGUST/SEPT 2025
