There is a general belief that whenever an accident occurs, particularly when it causes an injury, somebody is at fault.
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 David Williams, Partner in CSG, was 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."
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.
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.
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) Defendant 1 who contracted directly with Northern Powergrid to carry out the work;
(b) Defendant 2 who were sub-contracted by defendant 1 to carry out the work;
(c) Defendant 3 who were responsible for the day-to-day operation of the works pursuant to a sub-contract with defendant 2.
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.
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;
(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:
(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.
(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.
(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.
(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.
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 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.
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.
Our Casualty Team deals with cases like this on a regular basis. For more information or advice, please contact one of our experts.
