The Court of Appeal found that the Council did not owe the claimant a duty of care in negligence or public nuisance for a tripping accident in a market when exercising its statutory power as the market licensing authority.
Background
The claimant was injured in a fall after dark in Whitechapel Market when she tripped over a number of metal poles which were protruding from a trolley on the public highway. The poles were on the footpath in the gap between the two adjacent Market pitches. The weather was cold and wet, and light levels were low and the claimant did not see the poles before she tripped over them.
The poles had been left unattended, lying horizontally on a trolley that was beside a litter bin along with cardboard waste and a pink-and-white-striped tarpaulin. The poles extended from the end of the trolley for at least one metre across the footpath and they were not marked in any way to warn of their presence or to identify their owner. The claim proceeded on the assumption that they had belonged to or were the primary responsibility of an unidentified and unidentifiable market trader. The equipment had not been supplied by Tower Hamlets. A factor, unhelpful to Tower Hamlets, was that its usual inspection system was that an inspection ought to have taken place between 2.45pm and 6.00pm on the day of the accident had not been carried out: the time of the accident fell within this period.
The claimant brought proceedings alleging negligence and nuisance against Tower Hamlets, the Licensing Authority for the market traders at Whitechapel Market. The relevant highway authority for the footpath was Transport for London, not Tower Hamlets. It was not alleged that Tower Hamlets was the occupier of the Market Area.
The trial was listed before a Deputy District Judge who found Tower Hamlets liable in both negligence and nuisance, holding that as the licensing authority under the London Local Authorities Act 1990, Tower Hamlets owed the claimant a duty of care to ensure that the Market was managed safely and to prevent obstructions on the adjacent footpath. On the issue of causation, the Judge found that Tower Hamlets were in breach of duty for failure to implement the afternoon inspection. Tower Hamlets appealed.
Judgment
The lead judgment was delivered by Lord Justice Stuart-Smith. In unanimously allowing the appeal the Court applied the general principle set out in Tindall v Chief Constable of Thames Valley Police [2025] that a failure to exercise a statutory duty or power did not give rise to a common law duty in negligence unless the same duty would have been owed by a private individual. The claimant unsuccessfully argued that Tower Hamlets had assumed a responsibility to protect her from the harm that she suffered when she fell. Following CN v Poole BC [2020] the Court of Appeal found that no such assumption of responsibility existed.
On the issue of causation, the trial Judge had found that Tower Hamlets were in breach of duty for failure to implement the afternoon inspection. However, it was accepted evidence that the Defendant had until 6.00pm to complete that inspection. The accident occurred at 5.00pm, meaning that at the time of the accident Tower Hamlets were not in breach of duty and hence causation could not be established. The appeal was allowed on this point also.
The case was also pursued in public nuisance in that Tower Hamlets, although there was no evidence that it had created the nuisance, it had effectively adopted and failed to abate it. The Court of Appeal did not accept the proposition that a licensing authority such as Tower Hamlets is necessarily to be held responsible for a nuisance created by a third party simply because it had a supervisory or enforcement role pursuant to a statutory scheme such as that created by the 1990 Act. The appeal in nuisance was therefore allowed.
Comment
The appeal was successful in arguing that the exercising of a statutory power did not establish a duty of care. An important factual feature of this case was that the hazard in question was not created by Tower Hamlets, which had no knowledge of it prior to the accident. Furthermore, the claimant was unable to show how long the poles/trolley had been present prior to the accident.
The decision of the Court of Appeal will be a useful precedent in the future where other authorities are operating markets within their boroughs and accidents occur.
