Catch the pigeon!
Pigeons are a common, but unwelcome, sight at stations and around other railway assets, such as bridges. Their droppings can cause slip and trip hazards, which Tocs and Network Rail could find themselves liable for if they don’t take steps to clean up. Chris Price explains
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n railway stations, when pigeons are found to be roosting under bridges or roofs this presents the potential for an accumulation of pigeon excrement that could present a very real slipping hazard
to visitors to the station. Tocs, to whose premises the public are invited or permitted to enter, submit to the duty any occupier owes to visitors contained in Section 2 of the Occupiers Liability Act 1957. The ‘common duty of care’ is defined in Section 2. It is a duty to take such care as, in all the circumstances of the case, is reasonable to see that the visitor would be reasonably safe in using the premises for the purposes for which he or she is invited or permitted by the occupier to be there. The act is concerned with the duty of care arising out of the ‘state of the premises’ and the occupier should take steps to protect visitors from dangers which the occupier may not have created itself but are present on its land. If a court found that in a given situation pigeon droppings were a slipping hazard, then the defendant would need to demonstrate that it has a reasonable, effective cleaning system and that it was working on the day of the accident. The lead case in this area is Ward v Tesco Stores (1976): ‘Where a slip hazard arises, there has to be some reasonably effective system for getting rid of the dangers that might exist from time to time.’ The system has to be proactive and not merely reactive, in doing nothing until complaints or incidents arise. In Piccolo v Lockstock t/a Chiltern Flowers and Chiltern Railway
Company & Others (2007), the claimant was injured when he slipped and fell on flower petals, although there was evidence to suggest that there was also water present, as he walked passed the flower shop on the concourse. In that case, the owner of the flower shop was held
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liable for Piccolo’s injuries with the court finding that a clean-as- you-go system without any responsible member of staff checking conditions upon a regular basis was inadequate. So, how has the court applied these principles to fouling by
pigeons? In the case of Wandsworth LBC v Railtrack (2001), Railtrack was held liable in public nuisance for the fouling of a public footpath caused by pigeon infestation under one of its railway bridges. The Court of Appeal held that it did not matter whether the problem was created by the land owner, a third party or natural causes. As long as Railtrack was aware, and had the opportunity and means to abate the nuisance but failed to do so, liability was established and the full costs of abating the nuisance was chargeable to Railtrack. In the case of accidents giving rise to personal injury, two cases are worth considering, even though they are clearly not legal precedent. The first case was a decision of a district judge and the second case was settled out of court, but they do at least illustrate the approach that can be taken by the courts and the measures an occupier should address to support a successful defence. In Bryan v Wigan Council (2009), the claimant slipped on pigeon droppings on the public highway. She referred to the Wandsworth LBC v Railtrack decision, but the court distinguished that case upon the facts. In the Bryan case, the volume of pigeon droppings was not substantial and, on the facts, it was found there was no real source of danger. Furthermore, the council had a regular cleaning system which involved sweeping on a daily basis and with a mechanical sweep once a week. This claim was, therefore, dismissed. The claim was also dismissed against the second defendant
Shutterstock/ DanVostok
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