The Highways Act does not create liability for defective street furniture – the only claim lies in negligence. In this case there was a defective bollard which was not properly housed in the road due to a crumbling hole in the road.
A child tried to leapfrog the bollard. It collapsed and he was injured.
Held by the Court of Appeal, overturning the initial decision, that no case arose under the Highways Act for defective street furniture whether under Section 41 or Section 66. It was highly artificial to claim that the state of the road into which the bollard had been placed was defective, thus causing an injury under the Highways Act.
An insecure bollard did not arise from a failure to maintain the highway: Gorringe -v- Calderdale (2004) UKHL 12, considered.
However there was a case against the local authority in negligence.
It was foreseeable a child would leapfrog a bollard. It was established the bollard was insecure and the local authority had know that fact. They failed to do something that they had accepted they should do under their repair policy and it was not an unreasonable burden for them to get the bollard into a proper state.
The claimant was successful.
Matthew Shine (by his father and litigation friend Mark Shine) -v- Tower Hamlets London Borough Council (2006). CA (Civ Div) (Buxton LJ, Scott Baker LJ, Richards LJ), 9 June 2006