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
In 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 liable for Piccolo’s injuries with the court finding that a clean-asyou-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 because its management of the building did not give rise to a duty to prevent the ‘unpreventable’ as the fouling occurred when the pigeons were ‘in flight’.
In Matcham v Wandsworth Council and Network Rail (2007), the claimant recovered £20,000 compensation in an out of court settlement. She slipped upon wet pigeon excrement whilst walking under a railway bridge in Battersea. On the evidence, it was accepted that there was a long history of complaints from residents about the problems caused by pigeons roosting under the railway bridge and falling onto the pavement. The claimant had sued the Highway Authority, which was responsible for cleaning the streets on a regular basis and also Network Rail as it was responsible for the maintenance and upkeep of the railway bridge.
These cases indicate that the assessment of liability will be a fact-sensitive decision, but the principle is established that, potentially, a claimant can recover damages for injuries sustained following a trip or fall caused by an accumulation of pigeon droppings. However, the claimant will need to demonstrate that:
• The accumulation was sufficiently significant to have created a genuine slipping hazard and had become a real source of danger; and
• The claimant will be assisted if he or she can point to evidence of previous complaints about the accumulation.
In order to limit liability, it will be prudent for occupiers to take a proactive approach to these problems. At the very least they will be afforded with reasonable liability protection by implementing a proactive system of work for dealing with the hazard.
Falling short of devising an appropriate method of eradicating pigeons from premises entirely, regular and periodical checks and clean-ups of problem areas would appear to be the most practical method to deal with such a hazard, combined with any reasonably practicable structural modifications to provide a deterrent such as anti-roosting spikes.
The use of raptors (birds of prey) is a controversial and expensive method with no guarantee of success. Whilst some success has apparently been seen in open sites such as airfields, in buildings the problem arises from roosting. As soon as a raptor leaves the premises pigeons return to their roosts, rather than leaving the area.
Chris Price is a partner in the Insurance Law Division at Langleys solicitors.