Joshua Hedgman acted for Tower Hamlets in its successful appeal against claims brought in negligence and public nuisance after a tripping accident in a market that it licensed.

At around 5pm on 19 December 2019, Ms Sintes had the misfortune of tripping over some scaffold poles that had been left on part of the highway where the Whitechapel Market takes place.

The poles were from a deconstructed market stall and had been left there by an unknown market trader. Tower Hamlets was responsible for licensing and regulating the market traders under Part III of the London Local Authorities Act 1990. As part of its powers, Tower Hamlets undertook a regular system of inspection by which its market officers were required to identify and remove abandoned items. However, no late inspection took place on the day of Ms Sintes’ accident due to staffing levels.

As Ms Sintes could not identify the market trader who left the poles on the highway, she brought a claim against Tower Hamlets. Ms Sintes alleged that Tower Hamlets owed users of the highway a common law duty of care to remove obstructions to the highway that had been created by market traders.

Ms Sintes also alleged that Tower Hamlets was liable in public nuisance for permitting or continuing the nuisance created by the market trader who left the poles on the highway.

At first instance, Ms Sintes succeeded in her claims both in negligence and public nuisance.

On 28 and 29 April 2026, Tower Hamlets’ appeal was heard by the Court of Appeal (Bean, Stuart-Smith and Yip LJJ). In a Judgment handed down on 17 June 2026, the Court of Appeal unanimously allowed Tower Hamlets’ appeal, Lord Justice Stuart-Smith delivering the lead Judgment.

In deciding that no duty of care arose at common law, the Court of Appeal returned to the question of whether and when a public authority acting in pursuance of a statutory power may owe a duty of care to the claimant.

Following Tindall v Chief Constable of Thames Valley Police [2025] AC 1046, the general principle remained that a failure to exercise a statutory duty or power did not give rise to a common law duty unless a private individual would have come under a duty of care to an injured person on private law principles – generally by causing actual harm to the claimant.

Ms Sintes argued that this was not merely a case of failure to act because Tower Hamlets actively licensed the market traders – but the Court of Appeal rejected that analysis and treated the matter as an omissions case.

Ms Sintes argued that two of the well-known exceptions to the general principle arose in any event. First, it was alleged that Tower Hamlets exercised a very high degree of control over the market and its traders – not least given the prescriptive licensing conditions that it imposed and the thorough Standard Operating Procedures that it had in place for the running of the market.

Lord Justice Stuart-Smith acknowledged that Tower Hamlets exercised significant control in a general sense but accepted the submission that, on proper analysis, the control was part of its supervisory and regulatory function. In reality, the only ‘control’ that Tower Hamlets had was in its powers of revocation and enforcement. The Standard Operating Procedures could not sensibly be read as a blueprint for guaranteeing by supervision and oversight that no trader would ever breach their licence and cause a danger to pedestrians.

Second, it was alleged that Tower Hamlets had assumed a responsibility for the market and the actions of its traders. However, the Court of Appeal held that there was nothing approaching the type of relationship in which the highest courts had found a voluntary assumption of responsibility to arise. Neither was there any meaningful sense in which it could be said that Tower Hamlets ‘assumed responsibility’ for the safety of Ms Sintes as she walked along the highway in the market area.

Finally, the Court of Appeal dismissed the claim that Tower Hamlets had ‘permitted’ or ‘continued’ the public nuisance presented by the poles on the highway. Fundamentally, Tower Hamlets did not itself put the poles on the highway, and neither did it direct the market trader to put them there.

Lord Justice Stuart-Smith held that there was no conceivable justification for imposing on Tower Hamlets the unrealistic, unreasonable and unenforceable obligation to prevent or restrain the market traders from leaving obstructions on the highway. His Lordship found it unnecessary to review what it meant to ‘continue’ a nuisance where Ms Sintes could not show that Tower Hamlets either knew about the presence of the poles or had any opportunity to remove them.

As an aside, Tower Hamlets succeeded in overturning the trial Judge’s finding of primary fact – that the poles had been left on the highway since 2.45pm – on the basis that the finding was made without any evidence and was therefore ‘plainly wrong’.

The Court of Appeal also allowed Tower Hamlet’s appeal against the trial Judge’s finding of causation. Ms Sintes’ accident happened at 5pm whereas the trial Judge had required an inspection to be completed by 6pm, with the result that the accident happened an hour before the putative breach of duty occurred.

The full Judgment is reported as Sintes v London Borough of Tower Hamlets [2026] EWCA Civ 752 and is available here.

Joshua was instructed by John Palmer and Sehresh Jan of DAC Beachcroft LLP.

 

Joshua is a leading junior who specialises in defending claims involving novel duties of care or complex arguments about scope of duty. Joshua has particular expertise in defending claims brought in private law against public or regulatory bodies in the exercise of their statutory functions.