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England and Wales High Court (King's Bench Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Foggoa v J Murphy & Sons Ltd & Ors [2025] EWHC 1246 (KB) (20 May 2025)
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Cite as: [2025] EWHC 1246 (KB)

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Neutral Citation Number: [2025] EWHC 1246 (KB)
Case No: KA-2024-LDS-000011
Claim No: L00NE364

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
ON APPEAL FROM HHJ FREEDMAN
SITTING IN THE COUNTY COURT AT NEWCASTLE

20 May 2025

B e f o r e :

THE HONOURABLE MRS JUSTICE DIAS
____________________

Between:
SHEILA FOGGOA
(Executrix of the Estate of Barry Foggoa Deceased)
Appellant/Claimant
- and –

J MURPHY & SONS LIMITED
First Respondent/
Defendant
- and –

APPLEBRIDGE CONSTRUCTION LIMITED
Second Respondent/
Defendant
-and-

BUTLERS CONSTRUCTION N.E. LIMITED
Third Respondent/
Defendant

____________________

Mr Ian Pennock (instructed by Irwin Mitchell LLP) for the Appellant
Mr Michael O'Neill (instructed by DWF Law LLP) for the First Respondent
Ms Frances Lawley (instructed by DAC Beachcroft Claims Ltd) for the Second Respondent
Mr Simon Vaughan (instructed by Kennedys Law LLP) for the Third Respondent

Hearing date: 19 May 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 20 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    Mrs Justice Dias :

    A: Introduction:

  1. This is a combined hearing of an application by the Appellant for permission to appeal the dismissal of her claim by HHJ Freedman on 2 May 2024, and for permission to amend her Grounds of Appeal and to rely on fresh evidence. On 28 October 2024, HHJ Gargan ordered the application for permission to appeal to be heard following the hearing of the application to amend, with the hearing of the appeal to follow immediately thereafter, if and to the extent permission to appeal were granted.
  2. The underlying claim is brought by Mrs Sheila Foggoa as executrix of the estate of her late husband, Mr Barry Foggoa, in respect of injuries which the latter sustained as the result of an unfortunate mishap. Sadly, Mr Foggoa has since died for reasons unrelated to this accident.
  3. In brief, at about 9.45 on the morning of 19 November 2019, Mr Foggoa was out walking his dog when he slipped while walking over a board covering a trench which had been dug across the footway at the junction of Pooley Road and Stapleford Close in Newcastle. The trench had been dug on the instruction of Northern Powergrid to facilitate the laying of underground power cables as part of an upgrade to the electricity network. It is not in dispute that the trench was about 400 mm wide at the accident location and about 500 mm in depth. The board itself was bolted to the footway and measured 1.2 m x 800 mm. Barriers had been placed to either side of the board which were 2 m long and 1.2 m high with rotating feet. The trench to either side of the board outside the barriers was uncovered.
  4. Mr Foggoa was 70 at the time of the accident and, following an arthrodesy on his right knee some years previously, was unable to bend his right leg. According to his own 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. Unfortunately, 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.
  5. The claim was brought in both public nuisance and negligence against the three Respondents as follows:
  6. (a) The First Respondent ("Murphy") who contracted directly with Northern Powergrid to carry out the work;

    (b) The Second Respondent ("Applebridge") who were sub-contracted by Murphy to carry out the work;

    (c) The Third Respondent ("Butlers") who were responsible for the day-to-day operation of the works pursuant to a sub-contract with Applebridge.

  7. So far as the claim in public nuisance is concerned, the allegation is essentially that access along the highway was obstructed or hindered and that Mr Foggoa suffered damage over and above that caused to the public at large. With regard to the claim in negligence, the principal allegation for the purposes of the appeal is that the barriers provided to guard the trench were inadequate and in breach of the requirements of the New Roads and Street Works Act 1991 ("NRSWA") and of the Code of Practice published by the Secretary of State thereunder entitled Safety at Street Works and Road Works (the "Code").
  8. It was not in dispute that the equipment guarding the trench had been provided by Murphy and installed by Butlers. It was also not in dispute that, although it was Butlers who carried out the works on a daily basis, both Murphy and Applebridge had supervisors on site. Apportionment of liability as between the Respondents in the event that the claim succeeded was in issue: Applebridge had issued a Contribution Notice against Butlers while Butlers had made a Part 20 claim against both Murphy and Applebridge.
  9. B: The Judgment

  10. On 1-2 May 2024, a trial took place on liability only before HHJ Freedman in the County Court at Newcastle. It was accepted that questions of apportionment did not arise for the purposes of that hearing and accordingly the Judge did not find it necessary to distinguish between the Respondents. Nor, for the most part, is it necessary to do so for the purposes of this combined hearing.
  11. It should be mentioned that, although the Appellant had obtained permission to rely on expert evidence, in the event none of the experts was called to testify orally, although their reports were put in evidence. It is right to say that the Judge was sceptical, to say the least, about the need for expert evidence at all, let alone the need for a separate expert to be instructed for each party. He nonetheless referred in his judgment to the written reports, albeit he was careful not to accept what was there said without appropriate evaluation and analysis. In fact, there was little difference between the experts on the material issues and they agreed, in particular, that the barriers used were not designed or intended to withstand the lateral force which would be imposed by someone falling against them.
  12. In the event, the 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. It is necessary at this point to refer to a complaint made by Mr Pennock in his trial skeleton on behalf of the Appellant that the Respondents had produced no evidence that the local authority had granted a licence for the works to be carried out. The relevant Street Works Licence was produced by Murphy on the first day of the hearing and the Judge assumed that that was the end of the matter. In fact, however, the production of the licence prompted a further train of enquiries by the Appellant which have led to the applications referred to above to rely on fresh evidence and to amend the Grounds of Appeal.
  13. As regards the claim in negligence, the Judge identified five main contentions on behalf of the Appellant that there had been a breach of duty at common law:
  14. (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 Mr Foggoa from falling into he trench;

    (e) The guarding around the trench was generally inadequate. (This was really a compendious catch-all rather than a free-standing allegation.)

  15. In this regard, the Judge held that the 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. In his view, 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?
  16. The Judge rejected all the claimant's allegations of negligence, broadly for the following reasons:
  17. (a) The temporary structures put in place permitted free, unimpeded access along Pooley 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 otherwise. There was accordingly no imperative for the footpath to be shut off.

    (b) A wider board of 1.5 m 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 1 metre and the board actually used was 1.2 metres. 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 Respondents were justified in using standard barriers to guard the trench and their use was not criticised by any of the experts. The barriers were fit for their purpose and fully compliant with the Code.

  18. The Judge nonetheless went on to consider the question of causation in case he was wrong in his conclusion that there was no breach of duty. He concluded that Mr Foggoa's accident would still have happened even if the board had been wider and there had been no gap between the edge of the board and the barrier. The critical factor in his view was that the barrier was not designed to withstand and was incapable of withstanding the force applied to it from someone falling against it. On a balance of probabilities, therefore, Mr Foggoa would still have ended up in the trench with the same kind of injury and this could only have been prevented by some form of solid structure which was not indicated, called for or even suggested in the Code or by the expert evidence.
  19. As to a further criticism that no on-site specific risk assessment had been carried out, he held that this would have made no difference as it would not have resulted in any different precautions being taken.
  20. The Judge did not find it necessary to address a further argument on behalf of the claimant regarding legal causation and the question of "material contribution" to the damage.
  21. C: The Code

  22. Before turning to the substance of the applications before me, it is convenient first to set out the most relevant provisions of the Code. (Numbers in square brackets refer to page numbers of the Code):
  23. "Part 1: Basic principles

    …

    [8] This Code shows the principles you must follow when signing, lighting and guarding works on all highways…. The highway includes the carriageway, footway and verge.

    This Code shows typical layouts, equipment and working methods. It does not include every situation you could encounter…

    Following a risk assessment, additional measures may be necessary for site specific conditions.

    …

    [10] Risk assessment

    While this Code provides guidance on the requirements for signing, lighting and guarding your site, it cannot cover every situation and a site specific risk assessment should be undertaken for all works sites. Where a risk assessment identifies that measures are needed in addition to those required by this Code, these must be implemented.

    …

    Part 2: Operations

    [28] Footway and footpath works - look after pedestrians

    Where footways … are affected by street works…, it is your responsibility to make sure that pedestrians passing the works are safe. This means protecting them from both the works and passing traffic.

    You must take into account the needs of children, older people and disabled people… In order to do this you must provide a suitable barrier system (see page 97) that safely separates pedestrians from hazards …

    Safe routes for pedestrians

    If your work is going to obstruct a footway or part of a footway, you must provide a safe route for pedestrians … This route must consider the needs of those with small children, pushchairs and those with reduced mobility…

    You should always try to enable pedestrians to remain safely on the footway if possible. Ideally, the footway should be a minimum of 1.5 metres wide for temporary situation but if this cannot be achieved, the existing footway can be reduced to an absolute minimum of 1 metre unobstructed width….

    If it is not possible to maintain safe pedestrian access on the footway, consider whether there are other safe alternatives. This could mean, for example, closing the footway …

    [29] All pedestrian routes must be fit for purpose and able to be used safely by all pedestrians, including older people and disabled people… A suitable barrier should be placed between a pedestrian route and any adjacent drops or steep slopes.

    Footway boards may be used on footways to maintain a route for pedestrians … during excavation works.

    [30] Protecting pedestrians during works

    If the works are on or near a footway, then there is a risk that pedestrians might enter the working space. This could happen if they trip and fall into the working space, because they make a mistake and take the wrong route, or because they deliberately enter the space.

    The working space will often contain a number of hazards that could harm pedestrians. For example, pedestrians might trip over material, fall into excavations or be struck by moving or falling equipment. You must ensure that they are adequately protected against being exposed to these risks. You must also take into account the needs of children, elderly people and people with disabilities…

    [31] Unattended works

    If it is necessary to leave a site unattended, then remove as many hazards from the site as you can before leaving it…

    If an unattended site contains an open excavation within 2 metres of a temporary or permanent footway then you should consider either:

    •    putting temporary covers over the excavation 9see page 99); or

    •    providing an enhanced barrier around the excavation;

    unless a site specific risk assessment shows that such additional protection is not justified.

    …

    [97] Pedestrian barriers

    Pedestrian barriers should have:

    •    a handrail fixed at between 1 metre and 1.2 metres above ground level, which should be reasonably smooth and rigid to guide pedestrians and give them some measure of support;

    …

    [98] In some circumstances, your risk assessment may determine that enhanced guarding is required – for example if the site is to be left unattended, if it is next to a busy pedestrian thoroughfare, if there are pubs, clubs, football grounds or schools nearby, or if a deep excavation is present.

    …

    [99] Temporary covers over excavations However, it is important to bear in mind at all times that the duty of care at common law is only to act reasonably.

    Temporary covers should be capable of preventing a person from falling into the excavation. These covers should resist being displaced by the wind. As such, they might require ballasting or some other method for fixing them in place.

    …"

    D: The Grounds of Appeal

  24. The Appellant now seeks to appeal the decision of the judge on the following grounds:
  25. (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 make it less safe or convenient;

  26. Should the application for permission to rely on fresh evidence be granted, the Appellant seeks to rely on a further ground, namely that the Judge was misled into believing that the neither the applicant for the works licence, nor the Highway Authority believed that closure of the footpath was reasonably necessary when in fact, the applicant had specifically informed the Highway Authority (in the form of Newcastle City Council) that it would be closing the footpath but then failed to do so.
  27. E: The application for permission to rely on fresh evidence and to amend the Grounds of Appeal

  28. It is accepted by Mr Pennock on behalf of the Appellant that the application to amend the Grounds of Appeal cannot succeed unless permission is granted to rely on the fresh evidence. I therefore address the latter first.
  29. The fresh evidence in question principally relates to material obtained as a result of post-trial correspondence between the Appellant's solicitors, Irwin Mitchell, and Newcastle City Council in which Irwin Mitchell sought to obtain copies of the application for the works licence and any associated correspondence. In the event this yielded little of relevance other than a print-out of the on-line licence application submitted by Northern Powergrid as Works Promoter. This read in part as follows:
  30. "Footway Closure? Yes, a pedestrian walkway will be provided"

  31. Irwin Mitchell were informed orally by Newcastle City Council that the online form gave the Works Promoter the option to select "yes" or "no" in answer to the question about footway closure and that the Council did not require any method statements or descriptions of safety measures/policies to be submitted as it was assumed that the Works Promoter and any contractors it engaged would comply with the Code and not deviate from what was said in the application.
  32. Mr Pennock submits that this evidence would have been highly material to the outcome of the case. As set out in paragraph 13(a) above, in rejecting the Appellant's case that closure of the footway was reasonably necessary, the judge referred to the fact that the Council had not required such closure. However, Mr Pennock argues that the material above establishes that the Council was told, on the contrary, that the Respondents would be closing the footpath and only granted the licence on that basis, thereby indicating that both applicant and Council thought that closure was necessary. The Judge therefore reached his decision under a misapprehension and his judgment should be set aside since it cannot be known what he would have decided if he had been aware of the true position.
  33. For their part, the Respondents deny that this is a correct interpretation of the application document but in any event submit that there is no basis for admitting the evidence at this stage of the proceedings.
  34. The principles relevant to the admission of fresh evidence under CPR Part 52.21(2) for the purposes of an appeal are well-known and generally still accepted to be those set out by the Court of Appeal in Ladd v Marshall, [1954] 1 WLR 1389, albeit they are principles rather than rules, and that the court's discretion must always be exercised in accordance with the overriding objective:
  35. (a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

    (b) The evidence must be such that, if given, it would probably have an important influence on the case;

    (c) The evidence must be apparently credible, although it need not be incontrovertible.

  36. It was accepted that the evidence was credible for what it showed, although as just stated, there was a dispute between the Appellant and the Respondents as to precisely what it did show. The parties were also at odds as to whether the evidence could have been obtained for use at trial by the exercise of reasonable diligence. The latter turned on a detailed analysis of who had pleaded what, and when, and which party bore the burden of proving that the works were properly authorised. To my mind, this would have been a wholly sterile exercise which might well turn out to be wholly unnecessary if in fact the evidence did not materially support the Appellant's case. The evidence was not extensive and was not something which could have been put to any of the witnesses, since the application had apparently been made by Northern Powergrid, not by any of the Respondents and, as Mr Vaughan for Butlers pointed out, the likelihood of anyone from Northern Powergrid or Newcastle City Council remembering anything about the application was vanishingly small. Its proper interpretation was therefore purely a matter for submission and the Respondents would not be unduly prejudiced by its admission. Moreover, in order to obtain permission to appeal, the Appellant had to show that an appeal had a real prospect of success, which was necessarily bound up with the question of whether the evidence would have an important influence on the case.
  37. For these reasons, I indicated at the outset of the hearing that in my view, rather than embarking on a protracted debate about whose responsibility it was to prove that a licence had been obtained, the pragmatic and efficient course would instead be to allow the evidence to be adduced and treat the Grounds of Appeal as amended de bene esse with a final disposition of the application being made in the light of the outcome of the hearing. The hearing accordingly proceeded on that basis, subject to the express caveat by Mr O'Neill on behalf of Murphy that he maintained his client's position that the evidence should not be admitted in any event, irrespective of its influence on the outcome.
  38. There was, however, also a second aspect to the application to rely on fresh evidence. In his skeleton argument for the appeal, Mr Pennock included four photographs of the type of barrier he said was contemplated by the Code. The Respondents complained that these photographs had never been relied upon previously and were accordingly new evidence for which permission would be needed. Since there was no reason why they could not have been produced at trial, they did not even surmount the first of the Ladd v Marshall principles. Mr Pennock's riposte was that the photographs were not evidence at all, but simply a graphical depiction of what he would have described orally and in writing and that accordingly he did not need – and was not seeking – permission to rely on them.
  39. On this point, however, I agree with the Respondents. If the Appellant wishes to submit that these photographs represent a type of barrier which would have been adequate, then that is a submission which should have been made at trial and the Respondents' witnesses and experts should have been given an opportunity to comment on it. No explanation has been given as to why the photographs are only being relied upon now. Moreover, there is no indication as to the provenance of the photographs or as to the technical specifications of the barriers shown. I am therefore far from convinced that I could draw any sensible conclusions in any event as to these alternative barriers and how they compare with those which were actually used.
  40. I put this to Mr Pennock who sensibly did not seek to press the point.
  41. F: Discussion

  42. I now turn to the individual grounds of appeal.
  43. (1) Closure of the footway

  44. It is convenient to start with this proposed ground of appeal which of course depends on the admission of the evidence relating to the application for the licence.
  45. As to this, the Judge's finding on the basis of the evidence before him that there was no imperative to close the footway is unimpeachable. I agree with him that the Code only required closure if it was not possible to maintain safe access and - even on the Appellant's own case - it clearly was possible to maintain safe access.
  46. The question before me, however, is whether this conclusion is undermined by the new evidence relating to the application for the licence. Mr Pennock submits that:
  47. (a) It is unclear who actually applied for the licence. The Works Promoter is identified as Northern Powergrid, but this does not exclude the possibility that the actual applicant was Murphy, particularly given that (i) Murphy was identified in the application as a secondary contact; (ii) as between the Respondents Murphy bore for any licence applications;

    (b) The application document should have been disclosed. Murphy was clearly able to obtain a copy of the licence itself, and by the same token the associated application must also have been within its control or at least available to it;

    (c) If the application had been before the judge, he would have found that Newcastle City Council reasonably understood it to mean that the footway would be closed and an alternative footway provided elsewhere. Accordingly, the Council cannot have approved the approach to the works in fact adopted, which did neither of these things;

    (d) No evidence or explanation had been produced as to why it was ultimately decided not to close the footway;

    (e) It is not possible to extrapolate from the judgment what the judge would have decided if the application had been available to him and the judgment must therefore be set aside.

  48. The burden of making responsive submissions at the hearing was shouldered principally by Mr O'Neill on behalf of Murphy and I intend no disrespect to Ms Lawley on behalf of Applebridge or Mr Vaughan on behalf of Butlers when I say that their submissions added little more than icing to the more substantial cake presented by Mr O'Neill. This was to the following effect:
  49. (a) The suggestion that the licence application might have been made by Murphy was inconsistent with the Appellant's own evidence in the witness statement of Ms Gabbey-Cristofini where she described her exchanges with Newcastle City Council. The only sensible reading of this evidence was that the application had been made by Northern Powergrid.

    (b) There was no evidence that Northern Powergrid had kept a copy of the application and Murphy in fact obtained the licence directly from Newcastle City Council itself.

    (c) There were clearly two different versions of the application which bore different numbers and described different scopes of work. In any event, the application was clearly a living document since it contained a "History" section which recorded the progress of the works. It was therefore wholly unclear what the application looked like when the licence was first granted.

    (d) Nothing on the face of the application document stated that Northern Powergrid or the Respondents intended to close the footway completely for the entire duration of the works. Nor was there any express wording to suggest that this was a condition of the grant of the licence, or any evidence to the effect that Newcastle City Council in fact only allowed the works to take place on that basis, despite it being open to Irwin Mitchell to have asked this specific question.

    (e) Murphy's Site Manager, Mr Hodgson, openly recorded the state of the footway and took photographs showing it to be open. It is inherently unlikely that he would have done this if in fact the Council had required closure.

    (f) Moreover, there was evidence before the judge in the form of Mr Hodgson's witness statement that the site was the subject of inspection by the local authority as their representatives drove past it daily and would have noted any concerns. This also is inconsistent with a closure condition having been imposed

  50. I do not consider that any weight can be placed on this last point. A "drive-past" by representatives of the local authority is hardly what one would contemplate by way of formal inspection and, as Mr Pennock pointed out, Mr Hodgson's statement was admitted as hearsay and was not subject to cross-examination.
  51. That said, there is substance in Mr O'Neill's other points. Specifically, I am satisfied that the application was made by Northern Powergrid rather than Murphy, although as noted there is little prospect that anyone from either Northern Powergrid or the Council would have been in a position to give meaningful evidence at trial, let alone now, about what was contemplated when the licence was applied for and granted. It also seems overwhelmingly likely that the explanation for the apparently different applications is because the initial application was updated to expand the scope of the excavations required. For what it is worth, the licence refers to the number of the updated application.
  52. As for the reference in the form to footway closure, this is susceptible in theory to at least three different interpretations:
  53. (a) The footway would be closed for the duration of the works with a pedestrian walkway being provided elsewhere;

    (b) The footway would be temporarily closed from time to time in which case an alternative walkway would be provided at those times;

    (c) The footway would be temporarily closed from time to time in which case a pedestrian walkway would be provided of the type actually used here. (This last possibility was a suggestion made only by Mr Vaughan.)

  54. I might add for good measure that it is also wholly unclear whether the closure referred to was to be situated at the specific junction where Mr Foggoa fell, or whether it related to some other part of the works. Certainly I can see nothing in the evidence which remotely supports the submission that Newcastle City Council only granted permission for the works to be carried out on the basis that the footway at this specific junction would be closed for the entire duration of the operation.
  55. On that basis, I am entirely satisfied that the new evidence provides no grounds for disturbing the findings of the judge on this point. I do not accept that his decision that the footway was made reasonably safe materially depended on his understanding that Newcastle City Council had not required closure. It is difficult to resist the force of Mr O'Neill's submission that the Council's position was in fact a red herring: for the purposes of this claim either the footway could be made safe, in which case it did not need to be closed, or it could not, in which case the Respondents would be in breach of duty in any event. Accordingly, whether or not the evidence could have been obtained with due diligence prior to the trial, in my judgment it does not have any important influence on the case.
  56. (2) Interpretation of the Code

  57. Under this head, I address the first two grounds of appeal identified in sub-paragraph s18(a)18(b) above.
  58. It was not in dispute between the parties that the Code informs the standard of care required of the Respondents at common law. Prima facie, a defendant subject to the Code will be taken to act reasonably if its actions are in compliance with the Code. By contrast, non-compliance is not necessarily a breach of duty since departure from the Code may be justified by good and cogent reasons: see, for example, R (Munjaz) v Mersey Care NHS Trust, [2005] UKHL 58; [2006] 2 AC 148 However, it is important to bear in mind at all times that the claim in this case was based on a breach of the duty of care at common law which is only a duty to act reasonably in all the circumstances. In my judgment, therefore, the court should be cautious about finding that a defendant is required by the Code to do more than what is reasonable unless this is clearly indicated.
  59. In the event, Mr Pennock did not pursue any submission based on the presence of a dangerous gap between the edge of the board and the barrier on Mr Foggoa's right hand side. He did, however, maintain his submission that a wider board should have been provided. As stated above, the judge found that a 1.6 metre board was available and could have been deployed but nonetheless concluded that use of a 1.2 metre board was not in breach of the Code since it was wider than the minimum required and thus broadly compliant. In so finding, he took account of the fact that the width of the board was not the subject of criticism by any of the experts.
  60. I cannot see any basis for attacking this finding. The Code is at pains to emphasise that it should not be rigidly interpreted but that the precautions taken should be tailored to the conditions of the specific site and the particular risks that they present. Hence the requirement for a site-specific risk assessment. This can be seen, for example, from page 28 of the Code which merely states that "ideally" the footway width should be a minimum of 1.5 meters unless this cannot be achieved. This is not a prescriptive provision, however, in stark contrast to the requirement for an "absolute minimum" of 1 metre. In circumstances where the agreed expert evidence was that pedestrian safety was not compromised by the width of the board used here, there was ample material on which the judge could properly have concluded that there was substantial compliance with the Code. I disagree that he failed to provide sufficient reasons for his decision. On the contrary, his reasoning at paragraph 49 of the judgment is clear and cogent.
  61. Ultimately, the main debate before me concentrated on two points.
  62. The first of these was the adequacy of the barriers which, as agreed by the experts, were not designed to withstand the lateral force of someone falling into them and were not capable of so doing. Mr Pennock's submission was that pages 29-30 and 97-98 of the Code positively required the barriers to be capable of withstanding such a force.
  63. I have not found this an easy question to resolve given the following competing considerations:
  64. (a) As the judge held at paragraph 52, barriers are required to serve multiple purposes which he identified as warning, demarcation and protection. It is not entirely clear to me whether he was intending to find that these were the sole purposes that barriers might serve and/or whether the barriers in this case were intended to serve one, two or all of those purposes. For present purposes, I assume that it was all three.

    (b) The judge also held that the barriers were not required under the Code to do more than provide "some measure of support" as set out on page 97. However, as I have pointed out above, the Code is insistent that its provisions are not to be applied mechanistically and that any precautions should be tailored to the particular risks. Thus, as page 98 makes clear, enhanced protection may be required where the circumstances warrant, for example if the barrier is next to a deep excavation. It is a moot point whether the excavation in this case was to be regarded as deep. A 500 mm trench may not be particularly deep in absolute terms, but it may well feel that way to someone who unexpectedly finds themselves at the bottom of it.

    (c) Moreover, it might plausibly be said that the purpose of providing a barrier adjacent to a trench is not simply to stop someone wandering into it by mistake but also to stop someone falling into it because, for example, they have tripped: see page 30 of the Code.

    (d) On the other hand, although Mr Pennock disclaimed any suggestion that he was arguing for an absolute duty to prevent anyone falling into the trench in any circumstances, the difficulty is knowing where to draw the line. To my mind, it is not sufficient simply to say that the Respondents were not required to prevent, for example, a 10 ton truck veering into the trench. If it is not possible to articulate the extent of an alleged duty clearly, that in itself is a powerful reason why it may not be appropriate to impose it.

    (e) In this case, the only sensible test is one of reasonableness, which effectively begs the question. As the judge said at paragraph 48, the issue is essentially whether pedestrians were exposed to the foreseeable risk of injury which could have reasonably been prevented by further and additional measures. In this case, it was plainly foreseeable that someone walking across the board on a winter's morning might slip on a patch of ice and fall against the barrier. But was this a risk which should reasonably have been guarded against?

    (f) In this connection, Mr O'Neill argued that there is no obvious justification for treating the barriers adjacent to this particular board as different from the barriers along the remainder of the excavation. If a stronger barrier was required at this point, it would have been necessary along the full length of the trench – a proposition for which there was no evidence at all. Ms Lawley likewise submitted that the adequacy of the precautions should be looked at in the context of the site as a whole.

    (g) We are, of course, somewhat hampered by the absence of the risk assessment which was carried out for this site. I was informed by Mr O'Neill that an assessment was carried out but was no longer available by the time of trial. However, there was no evidence to suggest that any of the Respondents had simply ignored the findings of the risk assessment and, quite properly in those circumstances, no such argument was advanced. The judge was therefore entitled to assume that the actual precautions taken were in line with the risk assessment which had been carried out and that this had not recommended anything beyond what was actually done.

    (h) The experts were in agreement that the use of these barriers was standard and commonplace in the industry for this type of excavation. None of them criticised the use of this type of barrier as such. The Respondents' witnesses also testified that they were sufficient for the purpose required, and that they were not generally required to prevent someone falling into the trench as Mr Foggoa did.

  65. Obviously, the interpretation of the Code is for the court and not for the experts, let alone the factual witnesses. Nonetheless, in my judgment the approach to interpretation of an industry code of this nature must at least be informed by what is regarded as standard in the industry. While the industry view cannot be conclusive, it would be unusual for a judge to depart from an accepted industry standard except where it is clear that that standard is unacceptable. At the very least, one would expect some evidence to that effect, whereas there was none here.
  66. The task of an appellate court is to review the decision of the court below. Weighing all the factors to which I have referred above, I find myself ultimately unable to say that the judge's decision was wrong. There is nothing in the Code which expressly requires me to find that the Respondents should have done anything more with regard to the adequacy of the barriers than what was reasonable and nothing in the expert evidence suggested that they acted unreasonably. On the contrary, they did what was entirely standard in the industry and this is not a case where it can be said that the industry standard is so obviously unreasonable that the court should ignore it.
  67. I therefore reject the submission that stronger barriers should have been provided in order to be compliant with the Code. The judge's reasons for arriving at the same conclusion were clearly set out in paragraph 52-54 of his judgment and I therefore also reject any submission that his reasoning was not adequately explained.
  68. That leaves the second point which is whether boards covering the trench should have been provided outside the barriers on either side. As to this, I am not persuaded that the judge was necessarily correct to hold that the site was not unattended at the relevant time. He accepted that it was necessarily unattended overnight and, so far as I can see, there was no evidence that anyone had attended the site prior to Mr Foggoa's accident. Arguably, therefore, it was still "unattended" at that time and the Respondents should have given consideration to the provision of temporary covers in line with pages 98 and 99 of the Code. However, as Mr O'Neill observed, there was no specific ground of appeal challenging this particular finding, so the point is not open to the Appellant in any event.
  69. Even if it were, the question of providing temporary covers of this nature was considered by the experts who agreed in their Joint Memorandum that it was a possibility. The Respondents' experts said that it was unnecessary if the barriers were correctly located, while the Appellant's expert said that it was a matter for the risk assessment. But, for the reasons already given, the judge was entitled to assume that the risk assessment was followed. It must therefore be presumed that temporary covers were not required by the risk assessment, in which case there is no basis for finding that the Respondents failed to act reasonably.
  70. For these reasons, there are therefore no grounds for setting aside the judge's conclusion that no breach of duty was established in this case.
  71. (3) Causation

  72. Had I concluded that there was a breach of duty in failing to prevent Mr Foggoa from falling into the trench, a further point would have arisen as to whether Appellant could establish that his injuries would thereby have been avoided.
  73. The Respondents argued that the "but for" test was not satisfied because there was no evidence that Mr Foggoa would have avoided breaking his femur but for falling into the trench. Mr O'Neill correctly pointed out that the Respondents were in no way responsible for Mr Foggoa slipping in the first place and submitted that it was therefore for the Appellant to prove that he would not have broken his leg in any event.
  74. On this point, I would have held in favour of the Appellant. I agree that the authorities on material contribution relied on by Mr Pennock are not in point. Those are cases where there are two competing or concurrent causes, either of which may have caused the injury but where the evidence does not enable the court to say whether it was one or the other or both. By contrast, this case involved consecutive events forming a true "chain of causation" and it is necessary to take a realistic and pragmatic view. The uncontradicted evidence before the court was that Mr Foggoa broke his leg when it impacted the bottom of the trench. In those circumstances, if one asks what the dominant or effective cause of the injury was, the answer is clearly that it was the fall into the trench rather than the fall itself.
  75. Given my conclusions on breach of duty, however, the question of causation does not arise.
  76. (4) Public nuisance

  77. No oral submissions were addressed to me regarding the claim in public nuisance and Mr Pennock conceded that it did not add anything to his case. I therefore say no more about it other than that I would have rejected this ground of appeal for the reasons given by the judge.
  78. G: Conclusion

  79. For all these reasons, I hold that:
  80. (a) The application to adduce fresh evidence and to amend the Grounds of Appeal is dismissed;

    (b) The application for permission to appeal is allowed;

    (c) The appeal is dismissed.

  81. The question of apportionment of liability as between the Respondents accordingly does not arise.
  82. 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.

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