Another legal question

First.Aspect

Nothing to do with me this time though, I promise. I remember a while ago that someone posted about an accident on a farm track; he used the track regularly and one day came round a corner at some speed to find a new gate, and rather hurt himself. With this in mind.....

On one of my commutes, along an acccess road to two reservoirs, a new gate appeared. Here is the scenario - Road is a no through road owned by a utilities company allowing access to a regional park, a disabled parking space, farm land and several properties. One homeowner has problems with parties at the reserviors over the summer, contacts utilities company and obtains permission to put a gate up at the start of the road. The utilities company takes no interest in the design or operation of the new gate but it is installed on their land, not the homeowner's. Gate is painted black and there is no signage.

Someone drives into the gate, writes of their car and the gate. Who is liable?

(This has actually happened - which is interesting because the gate was clearly lethal; opened and closed at random, left partly pointing into the road facing up a hill and ideally designed (a top bar with a diagonal brace) to ride up a bonnet and squewer a car passenger, or do untold nasties to an unobservant cyclist at almost any speed. Fortunately some young scrote seems to have obviated the need to persuade anyone of the evident danger).

dhope

Something similar happened quite recently with tragic consequences
http://www.bbc.co.uk/news/uk-wales-18247958

First.Aspect

dhope wrote:

Something similar happened quite recently with tragic consequences
http://www.bbc.co.uk/news/uk-wales-18247958

I didn't know about that incident. Nasty.

cjcp

Wouldn't surprise me if there were occupiers liability issues.

DrLex

Plus consideration of CROW, given the access element. Council may be picky about the gate opening out onto the road - Highways Act 1980.
Having said that, if I was the gate installer, I'd be claiming against the motorist's insurance for a new one.

roger_merriman

I think that unless they could prove otherwise that the car would be a fault.

And I think that would be hard one to prove, Access roads - private roads are often fairly rough and ready, ie should be travelling at speed capable of stopping.

First.Aspect

Common sense would certainly suggest so, Roger. However I am thinking along the lines that provision of access at all brings with it a duty of care.

roger_merriman

First Aspect wrote:

Common sense would certainly suggest so, Roger. However I am thinking along the lines that provision of access at all brings with it a duty of care.

I doubt it, a private/utility road would not be somewhere, where high speeds are expected. ie really should of seen the gate dark coloured or not.

Around my folks locality and area, you get gates across roads though farms and what not, plus cattle grid's and thats with out the odd rockfall from scree or walls.

SimonAH

I don't want to sound unsympathetic to the chap who died on the Taff Trail, but we are getting awfully American here. From now on they have to consider the safety of motorcyclists on the trail when motorcyclists are expressly prohibited from using it (and feck it up for walkers and cyclists) ???

cjcp

The memory is a bit sketchy, but there were cases where trespassers onto British Rail land successfully sued when they were injured. It may have been in the context of an allurement, but I could see something similar happening here.

optimisticbiker

SimonAH wrote:

I don't want to sound unsympathetic to the chap who died on the Taff Trail, but we are getting awfully American here. From now on they have to consider the safety of motorcyclists on the trail when motorcyclists are expressly prohibited from using it (and feck it up for walkers and cyclists) ???

i agree. Slightly OT but there was a case recently brought by HSE against a management company for negligence when a teenager fell through a rotten floor in a building due for demolition which was locked and boarded up and had big signs outside saying 'dangerous building - do not enter'. In the end the HSE lost as I understand it, though it was close and the ruling if they'd won would have made it incumbent on agents to repair buildings due to be demolished as well as being open for civil liability when people break into them which is a complete nonsense IMHO. The nanny state again getting in the way of common sense and personal responsibility...

DrLex

cjcp wrote:

The memory is a bit sketchy, but there were cases where trespassers onto British Rail land successfully sued when they were injured. It may have been in the context of an allurement, but I could see something similar happening here.

Mine too - think it was HoL; BRB & Herrington, but recall emphasis on it being a dangerous item (live rail) & failure to repair the barrier after being on notice; driving into a gate strikes me (ho ho) as easily distinguishable.

Kieran_Burns

DrLex wrote:

cjcp wrote:

The memory is a bit sketchy, but there were cases where trespassers onto British Rail land successfully sued when they were injured. It may have been in the context of an allurement, but I could see something similar happening here.

Mine too - think it was HoL; BRB & Herrington, but recall emphasis on it being a dangerous item (live rail) & failure to repair the barrier after being on notice; driving into a gate strikes me (ho ho) as easily distinguishable.

Yup. An open and shut case....