EWJ August 62 2025 web - Journal - Page 8
(b) A wider board of 1.5m could have been put in
place (it being accepted that one was available) but the
minimum requirement under the code was for a
board of 1m and the board actually used was 1.2m.
There was therefore broad compliance with the code.
and that someone has suffered injuries, there is no
guarantee that the legal requirements for a valid claim
to arise are satisfied. The mantra taught to law students of "Duty, Breach, Damage, Defence" remains an
important set of considerations.
(c) Although there was a small horizontal gap between
the edge of the board and the barrier, this did
not amount to a material failure in the design or
installation of the safety precautions.
In determining a claims strategy, always remember
that an accident, however tragic, can be just that…an
accident. It is not necessary for someone to have been
at fault and, if no-one is at fault, no claim arises.
(d) Barriers are required to serve a number of
purposes: warning of the dangers of an excavation,
demarcation between the board and the trench; and
protection to prevent people stepping into the trench.
It was not a requirement of the code that the barriers
be of such strength and robustness that they could
withstand the lateral force of someone who had lost
his balance and collided with the barrier. No enhanced
protection was called for under the code. The use of
standard barriers to guard the trench was justified and
their use was not criticised by any of the experts. The
barriers were fit for their purpose and fully compliant
with the code.
Our Casualty Team deals with cases like this on a
regular basis. For more information or advice, please
contact one of our experts.
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8052025-Casualty-DavidWilliams
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David Williams
Partner, Leeds
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The trial judge dismissed the claim in public nuisance
as groundless and lacking any merit on the basis that
there continued at all times to be free and unimpeded
access along the highway.
The appeal
The claimant appealed on the following grounds:
(a) The judge incorrectly interpreted and construed
the code;
(b) The judge failed to give due weight to the fact that
the code was statutory guidance which set or informed
the applicable standard of care, and failed to give any
or any adequate reasons why it could be departed
from in this case;
(c) The judge failed correctly to apply the factual "but
for" and legal "material contribution" tests of causation;
(d) The judge wrongly failed to appreciate that a
public nuisance on the highway included not only the
obstruction of passage but also the hindering of
passage by making it less safe or convenient.
After detailed consideration of the facts, the code and
what the same required, Dias J. hearing the appeal
concluded that "there are therefore no grounds for setting
aside the judge's conclusion that no breach of duty was established in this case." The appeal was therefore dismissed,
the judge concluding that "I appreciate that this decision will come as a disappointment to the appellant
but it is a sad fact of life that accidents can and do happen without fault on the part of anyone. Mr Foggoa
was the unfortunate victim of just such an accident but
on the basis of the evidence before the court it cannot
be said that the respondents were under a duty in law
to prevent his injuries."
What is to be taken away from the decision?
The decision is one which helps to demonstrate the
importance of understanding the basic requirements
of tortious claims and the need to ensure that even in
cases where there has undoubtably been an accident
EXPERT WITNESS JOURNAL
6
AUGUST/SEPT 2025
