Background
On 19 December 2019, at approximately 5:00 pm, Ms Eva Cobija Sintes — then 35 years old and 36 weeks pregnant — alighted from a bus at Whitechapel Station and was walking toward the Royal London Hospital for a maternity ward tour. In the pedestrian footpath between pitches 67 and 68 of Whitechapel Market, she tripped over a set of metal poles, approximately 2.5–3 metres long, lying horizontally on a trolley alongside cardboard waste. The poles, components of a market stall, extended at least one metre across the footpath, were unmarked, and belonged to an unidentified and unidentifiable trader. In the cold, wet, low-light conditions Ms Sintes did not see them before falling, suffering a serious fracture to her right ankle. Her unborn child was unaffected and was delivered safely the following January.
Ms Sintes sued the London Borough of Tower Hamlets — the licensing authority for Whitechapel Market under Part III of the London Local Authorities Act 1990 — in negligence and public nuisance. She did not allege the poles were placed there by Tower Hamlets; nor did she sue Transport for London, which was the actual highway authority for the footpath. Her case was that Tower Hamlets had, through its detailed licence conditions and Standard Operating Procedures for Market Officers, assumed a sufficient degree of control and responsibility over the market’s operation to owe pedestrians a duty to prevent or promptly remove such obstructions.
Deputy District Judge Gwynfor Evans, sitting in the County Court at Central London, found in favour of Ms Sintes after a liability-only trial (quantum having been agreed). He held that Tower Hamlets’ licensing regime and its Standard Operating Procedures and Processes for Market Officers demonstrated that the council had assumed responsibility for market safety at a level giving rise to a duty of care to ordinary footpath users. Tower Hamlets appealed, and the appeal was transferred to the Court of Appeal where it was heard by Bean LJ (Vice President), Stuart-Smith LJ, and Yip LJ over two days in April 2026.
The Court’s Holding
The Court of Appeal allowed Tower Hamlets’ appeal. Lord Justice Stuart-Smith, giving the leading judgment, concluded that the statutory scheme under the 1990 Act and Tower Hamlets’ implementation of it through its licence conditions did not create a duty of care owed by the council to pedestrians injured by hazards created by individual licensed traders. A critical structural feature of the statutory framework was that virtually every provision conferring powers on the borough council was expressed as a discretionary power rather than a mandatory duty. The licence conditions placed primary obligations — safe trading, keeping goods within pitch limits, removing stalls and equipment at the end of each trading day, maintaining public liability insurance — squarely on the traders themselves, backed by criminal sanctions and the threat of licence revocation.
The court drew an important distinction between Tower Hamlets’ supervisory and enforcement role — which derived from the 1990 Act — and an assumption of operational responsibility for the market that could ground tortious liability to third parties. The power conferred by section 35(1) of the 1990 Act (and mirrored in Condition 11.5 of the Standard Conditions) to remove traders’ receptacles that have not been cleared after trading ceased was characterised as an empowered backstop against non-compliance by licence holders, not as an undertaking by the council to police the footpath in place of the traders. The relevant highway authority was TfL, not Tower Hamlets, and the council was neither the occupier of the market nor of the adjacent highway. The DDJ had erred by treating the detail and breadth of the SOPP as demonstrating a level of control sufficient to give rise to a duty; properly analysed, the SOPP described the steps Tower Hamlets intended its officers to take to secure compliance by traders with their own licence obligations.
Key Takeaways
- A local authority’s role as a statutory licensing authority for street traders does not, without more, give rise to a duty of care in negligence to members of the public injured by hazards created by those traders; the primary legal obligations rest on the licence holders, not the licensor.
- Detailed operational procedures and conditions that a licensing authority uses to secure trader compliance are evidence of a supervisory and enforcement function, not an assumption of direct responsibility to third parties for the consequences of trader non-compliance.
- Where a statutory scheme expresses the council’s powers as discretionary (save for the narrow mandatory duty to grant licences under s.25(5)), a claimant cannot convert those powers into a common law duty of care merely by pointing to the breadth or specificity of the authority’s internal procedures.
- The identity of the relevant highway authority matters: Tower Hamlets’ lack of any duty or power over the footpath (which vested in TfL) was a significant factor militating against imposing liability on it for obstructions on that footpath.
Why It Matters
This decision provides important clarification of the boundary between a local authority’s statutory licensing function and tortious liability to the public. It confirms that elaborate regulatory frameworks — including detailed licence conditions and officer operating procedures — do not by themselves convert a council’s discretionary supervisory role into a duty of care owed to every member of the public who might be harmed by a regulated party’s non-compliance. Councils exercising licensing functions under the London Local Authorities Act 1990 (and comparable legislation) can take comfort that the existence of enforcement powers does not automatically translate into personal liability when an individual trader acts in breach of conditions.
For claimants and their advisers, the case underscores the importance of correctly identifying the defendant most directly responsible — here, the anonymous trader who left the poles unattended — and of engaging with the precise statutory framework to determine whether any mandatory (rather than discretionary) duty was engaged. Where the highway authority and the licensing authority are different entities, as they were here, the failure to join the highway authority may leave a significant gap in a claimant’s case.