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Woman loses claim for 2m fall off footpath

By Western Morning News  |  Posted: April 26, 2013

TruroCourt

Woman loses claim for 2m fall off footpath

A woman who fell two metres from a path in Cornwall and then sued the local council for failing to fence off the area, has had her compensation hopes dashed.

Sophie Tacagni was on her way home from a night out with her boyfriend almost five years ago when she "fell into oblivion", tumbling off the edge of an unfenced section of the pathway at Hayle on to a road.

Ms Tacagni launched a damages claim against Penwith District Council – later replaced by Cornwall Council – for her serious injuries and Truro County Court ruled in May last year that the authority was one third responsible.

However, top judges at London's Court of Appeal have overturned that decision and dismissed Ms Tacagni's claim – and ordered her to pay more than £11,000 towards the council's legal costs.

Lord Justice McCombe said Ms Tacagni drank seven pints of lager and a vodka and lime over several hours in Hayle's Salt and Bird in the Hand pubs, before walking home with her boyfriend, at 11.30pm on September 15, 2007.

They passed along an elevated, unlit, path near Carsnew Road – the B3301 – until her boyfriend decided to run ahead and call a taxi.

Ms Tacagni, who has lived in the area for years, continued on her own by using a fence – erected by the council in 2001 after a land slip – to guide her along the path in virtual darkness.

After following the fence on to a grass verge, where the drop was no longer guarded, Ms Tacagni leaned over to adjust her shoes and fell off the edge, hitting the road below.

She sued the council, claiming it had failed to protect her from a foreseeable risk of injury. The fence, which ended at the precipice, created a perilous "trap" to the unwary, her lawyers argued.

Her barrister, Stephen Douglas, said: "This case involved a drop, which on any risk assessment should have been seen to be a danger and which should have been protected by a fence. It is as simple as that."

Mr Douglas said Ms Tacagni had "fallen into oblivion" only a month after a member of the council's staff raised concerns about the risk of young children and cyclists plunging off parts of the path.

However, the council's barrister, Timothy Petts, said there was no record of any accident ever occurring on the path before Ms Tacagni's fall.

The "small possibility" of a person, having drunk alcohol, using the path in the dark, employing the fence as a guide and without recognising the hazards, was so remote that the council could not have been expected to do more, he added. He said: "Fencing off the drop would have been a disproportionate reaction to the risk."

Lord Justice McCombe, sitting with Lord Justice Laws and Lord Justice Lewison, said: "The evidence did not in any way support the finding that Penwith Council was unreasonable and failed to guard against an accident occurring which was highly likely.

"I cannot accept the judge's analysis or his finding in the circumstances that a reasonable person in the position of Penwith Council would have seen an accident as a likely possibility.

"For these reasons the appeal is allowed and the claim is dismissed."

Ms Tacagni was not in court to hear the ruling.

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