High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"If the minor plaintiff had been a pedestrian who had tripped on this defective toby, I would be satisfied that the Department of the Environment was in breach of its duty to maintain the alleyway under Article 8(1) of the Roads (Northern Ireland) Order 1992 and that the Department had not established the statutory defence set out in sub-sections 2 and 3 of Article 8 of the said Order."

"McCollum LJ, who delivered the brief ex tempore judgment of the court, has been able to turn up his notebook for that hearing in which he recorded the reasons given by the court for affirming the judgment of O'Donnell LJ as follows:

'The ratio of the court's decision is that the duty on the Department in relation to footpaths is that footpaths should be safe for pedestrian traffic with all the appurtenances that might reasonably be expected to accompany such traffic. There is no duty to make the footpaths safe for other kinds of traffic such as bicycles and, a fortiori, for activities which may not even fall properly within the description of "traffic".

The emphasis is on pedestrian use which would include other ancillary activities such as wheeling prams etc. All kinds of pedestrians are to be taken into account, that is all the kinds of pedestrian use that can reasonably be anticipated.

The court takes the view that this does not impose a duty on the Department to make the footpaths safe for the use of skateboards'."

That decision of the Court of Appeal is binding on this court and accordingly, I have to dismiss the plaintiff's claim.

"[10] The nature of the use made of the road by the particular user will nevertheless be material in two ways. In the first place, as appears from the terms of Article 8(3), the standard of maintenance will depend to an extent upon the traffic which is reasonably expected to use the road (and the manner in which that traffic may be expected to do so). Accordingly, if the balance of a rollerblader skating on the footway is upset by an unevenness which would not be a danger to foot passengers, and he falls and is injured, the road authority should not be liable. Secondly, if a person uses the road in a reckless fashion, for example, by riding a motor cycle at speed on the footway, and is injured by reason of a defect which would constitute a danger to pedestrians, his damages may be reduced for contributory negligence, or in an extreme case his claim might be defeated by the defence of volenti non fit injuria.

[11] I accordingly conclude that in principle the respondent road authority did owe a duty to the appellant and that her claim should not be barred on the ground accepted as valid by the judge."

Later the Lord Chief Justice stated his conclusion -

"[18] In the present case it was not in dispute that the hole created by the absence of the toby lid would have constituted a danger to pedestrians and the respondent Department did not rely on the statutory defence. This is in my opinion sufficient to conclude the case in favour of the appellant. Since she was injured by reason of that defect she is entitled to recover against the Department. In view of her age, the issue of contributory negligence is unlikely to arise, but we shall leave that to the trial judge. I would allow the appeal, remit the action to the judge to assess damages, determine the extent of any contributory negligence and enter judgment for the appellant for the appropriate figure."

"The minor Plaintiff in this case had had her award of damages removed by reason of Sheil Js understandable misapplication of the scant information available in relation to the Ingram case. The unavailability of a reported decision in Ingram undoubtedly inhibited both Plaintiff and Defendant in their presentation of the case before Sheil J. Given the findings of fact made in the County Court and by Sheil J. on appeal it is now clear that our client is entitled to compensation for the injuries sustained by her on 23rd May, 1996. We are advised by Senior Counsel and believe that Sheil J. is not longer seised of this matter and that procedurally her cause of action has been determined.

We are also advised that our client is entitled to issue fresh proceedings with a view to having this issue re-litigated in order that the law may be properly applied to her case against the Department. Quite apart from the justice and equity of her claim against the Roads Authority you will also appreciate that there is a human rights aspect to this case where effectively, an emanation of government - your Department - has benefited from the application of an unreported decision of a superior court. This arose in a situation where the Plaintiff did not have the opportunity of arguing the relevant issues by reason of the unavailability of the Ingram case.

We write to request you to set out your proposals for compensating our client. It is our view that she is entitled to the damages which were awarded in her favour by the County Court Judge together with interest. If this benefit can be secured for our client then no further proceedings will be necessary. If this cannot be achieved then our client will issue fresh Civil Bill proceedings and in anticipation of any res judicata argument on behalf of the Department we put you on notice of our clients intention to rely upon the House of Lords decision in Arnold and Others -v- National Westminster Bank (1991) 3 AER 41. It is our view that the former proceedings have been concluded and as our client was legally aided her costs have been paid by the Legal Aid fund. On the basis of Senior Counsel's opinion we will obtain Legal Aid for the issue of fresh proceedings. It seems to us that before issuing these proceedings the Defendant should have the opportunity of compensating our client with an award of £5,000 plus interest and we put you on notice that we have authority to accept this amount upon your undertaking to be responsible for our reasonable legal and professional costs to date. We have also considered whether or not any such settlement would require the approval of the Court: we take the view that the quantum of the settlement was, de factor approved by the County Court Judge and that no further approval is necessary."

"Under a lease between the defendant landlords and the plaintiff tenants there was provision for rent reviews at approximately five-yearly intervals, such reviews to be carried out partly by reference to a hypothetical lease for the unexpired residue of the term. On the first review, in 1983, a dispute arose between the parties as to whether or not the hypothetical lease was to be construed as itself containing rent review provisions. Walton J. held, on an appeal from an arbitrator, that it was not to be so construed. He refused a certificate under section 1(7)(b) of the Arbitration Act 1979 that the question of law was one which ought to be considered by the Court of Appeal, and the Court of Appeal held that no appeal lay from that refusal. Judicial decisions, including two in the Court of Appeal, given after Walton J.'s judgment, indicated that his decision on the construction point was wrong. Before the second review became due in June 1988, the plaintiffs brought an action for, inter alia, determination of the basis on which rent reviews under the lease were to be conducted. On an application by the defendants to strike out that claim on the ground that the plaintiffs were barred by issue estoppel from relitigating the point decided by Walton J., Sir Nicolas Browne-Wilkinson V.-C. held that the plaintiffs were not barred. The Court of Appeal dismissed the defendants' appeal."

The defendants appeal to the House of Lords was dismissed. It was held –

"dismissing the appeal, that although issue estoppel constituted a complete bar to relitigation between the same parties of a decided point, its operation could be prevented in special circumstances; that where further material became available which was relevant to the correct determination of a point involved in earlier proceedings but could not, by reasonable diligence, have been brought forward in those proceedings, it gave rise to an exception to issue estoppel, whether or not that point had been specifically raised and decided; that such further material was not confined to matters of fact but that where a judge made a mistake and a higher court overruled him in a subsequent case, justice required that the party who suffered from the mistake should not be prevented from reopening that issue when it arose in later proceedings; and that, accordingly, the plaintiffs ought to be permitted to reopen the question of construction decided against them by Walton J."

"The public interest in seeing an end to litigation is of little weight in circumstances under which, failing agreement, there must in any event be arbitration at each successive review date. Estoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process. In the present case I consider that abuse of process would be favoured rather than prevented by refusing the plaintiffs permission to reopen the disputed issue."

"The accepted principle of finality seems to have been applied equally to each branch: the decision of an issue which was essential to the decision of the action was treated in the same way as the decision of the action itself. In one way the logic of not distinguishing issue estoppel from cause of action estoppel is unassailable. If the decided issue was crucial in the first action, it remained crucial in the second, and the important point was that the issue was decided (not neglected or overlooked, as in non-issue estoppel) and was essential to the decision of the first action; it was therefore equivalent to the decision itself and was an equally great obstacle to a claim in the second action."