Deflecting various arguments in highways matters

In the recent case of LB v Merthyr Tydfil County Borough Council, in which Dolmans represented the Defendant Local Authority, the Claimant raised various issues, including categorisation and use of the highway, the slope of the carriageway and inspections under parked vehicles in an effort to convince the Trial Judge that the Defendant Local Authority had breached Section 41 and/or that the Defendant Local Authority had no Section 58 Defence under the Highways Act 1980.

This matter also provides a useful summary of the basic framework of the issues to be considered when dealing with such highways matters.

Background and allegations

The Claimant alleged that she was walking along a rear access lane when she stepped in a depression, causing her to fall and sustain personal injuries.

The relevant location was part of an adopted highway and the Claimant alleged breach of the Highways Act 1980 accordingly.

The Claimant’s Particulars of Claim also pleaded a breach of common law negligence. It was argued, however, that there is no common law duty to maintain the highway, any such common law duty in respect of the highway being restricted to misfeasance rather than nonfeasance. It was accepted that the Claimant had a cause of action for breach of the statutory duty in accordance with Section 41 Highways Act 1980, but did not have a cause of action in common law negligence accordingly.

The Claimant was required to prove the mechanism of the alleged accident, including identification of the particular defect. In addition, the Claimant had to prove that the alleged defect was a real source of danger at the time of the alleged accident.

The Defendant Local Authority argued that it had an appropriate Section 58 Defence, the burden to prove the same shifting to the Defendant Local Authority. Likewise, the Defendant Local Authority was required to prove any contributory negligence alleged on the Claimant’s part.

Mechanism of the alleged accident

The Claimant argued that she was able to prove the circumstances and mechanism of her alleged accident, relying upon her own evidence, that of her husband who did not witness the mechanics of the Claimant’s alleged accident and various photographs taken by the Claimant’s husband some days following the date of the Claimant’s alleged accident when she was not present.

The Defendant Local Authority referred to the Court of Appeal decision in James v Preseli Pembrokeshire District Council (1993) PIQR 114, where it was held that a claimant must satisfy the court that the particular spot where they tripped or fell was dangerous and the question is not whether the highway as a whole was in poor condition.

Some of the Claimant’s photographs in the current matter showed various locations in the vicinity which the Claimant stated merely provided some perspective of the relevant lane.

As in all such matters, it is important to consider the Claimant’s copy medical records. In this particular matter, the Claimant’s copy medical records referred to the Claimant having tripped rather than having placed her foot in a depression as alleged. The Claimant was forensically cross-examined at trial and was adamant that she had not tripped, but that her foot had gone down into the alleged defect.

Real source of danger

In accordance with the Court of Appeal decision in Dean and Chapter of Rochester Cathedral v Debell (2016) EWCA Civ 1094, it is not enough for the court to find that the defect posed a foreseeable risk to users of the highway. The risk must be such as to create a real source of danger, borrowing the language of Dillon LJ in Mills v Barnsley MBC [1992] 1 P.I.Q.R. 291. The assessment of dangerousness must also take account of the nature of the highway where the alleged accident occurred.

The rear access lane where the Claimant’s alleged accident occurred in the current matter did not have a designated footway and was classed as a carriageway, providing vehicular access to the rear of the adjacent properties. The Claimant argued that the relevant carriageway should be re-categorised to account for pedestrian usage.

The Defendant Local Authority referred to the decision in Cenet v Wirral MBC (2008) WHC 1407 (QB), where Swift J held that when making an assessment of dangerousness, the correct approach is to apply the standards of the carriageway to such defects, unless there is evidence of an abnormal amount of pedestrian traffic on the particular stretch of the carriageway. There was, however, no evidence to suggest an abnormally high level of footfall upon the rear lane in the current matter.

The Claimant also argued that the Defendant Local Authority’s post-accident inspection did raise an actionable defect at the relevant location. The Claimant’s Claim Notification Form was submitted over 3 months after the date of the Claimant’s alleged accident. In response to this, the Defendant Local Authority’s Highways Inspector undertook an ad-hoc inspection and did, indeed, note an actionable defect at that time.

It was argued, however, that it did not automatically follow that the alleged defect was the same size as at the time of the Claimant’s alleged accident and that the Claimant had to prove that the alleged defect was a real source of danger at the time of her alleged accident by reference to her own photographs and measurements, which were disputed. The Defendant Local Authority’s said inspection indicated a range of measurements, some of which were below the relevant intervention level for the location.

Many of the Claimant’s photographs did not contain any measurements, but rather showed the scene and various angles of the depression in the carriageway. The remaining photographs did include a tape measure, but it was not possible to determine the size of the depression from these images. It was argued that the Claimant’s photographs showed a depression in the carriageway that would not present a real source of danger to the ordinary traffic utilising that particular stretch of the highway, namely slow-moving vehicles. In addition, the alleged defect was located on the edge of the carriageway and could easily have been avoided by users of the highway.

Section 58 Highways Act 1980

By way of a reminder, Section 58 of the Highways Act 1980 provides:

(1) In an action against a Highway Authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove the Authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.

(2) For the purposes of a defence under subsection (1) above, the Court shall in particular have regard to the following matters:

(a) The character of the highway and the traffic which was reasonably to be expected to use it;

(b) The standard of maintenance appropriate for a highway of that character and used by such traffic;

(d) Whether the Highway Authority knew or could reasonably have been expected to know that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

(e) Where the Highway Authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed.

The rear access lane where the Claimant’s alleged accident occurred was subject to 6 monthly walked inspections. No actionable defects were noted at the location of the Claimant’s alleged accident during the Defendant Local Authority’s pre-accident scheduled inspection.

The Claimant maintained that the alleged defect had been missed during this pre-accident scheduled inspection. In support of this allegation, the Claimant referred to another ad-hoc inspection that was undertaken by the Defendant Local Authority prior to notification of the Claimant’s alleged accident, but since the Defendant Local Authority’s pre-accident scheduled inspection. At the time of this particular ad-hoc inspection, no actionable defects were noted at the location of the Claimant’s alleged accident. This was not, of course, the ad-hoc inspection referred to above when the Defendant Local Authority subsequently took measurements.

The Defendant Local Authority argued that even if the alleged defect was missed at the time of this other ad-hoc inspection, which was denied, that was not evidence that the alleged defect was, in fact, present and actionable some months earlier at the time of the pre-accident scheduled inspection and was not evidence that the said pre-accident scheduled inspection was not carried out reasonably and competently.

In any event, the relevant Highways Inspector dealt specifically with this other ad-hoc inspection by way of witness evidence, when it was recalled that a van was parked in the rear access lane that would have obscured the alleged defect. The Highways Inspector even returned later that day to check if the van had been moved, but it had not.

The Defendant Local Authority does not permit its Highways Inspectors to look underneath vehicles when inspecting the highway for reasons of safety and it was argued that this is plainly reasonable in the circumstances. It was also adduced that the Highways Inspector had noted other defects close to the relevant location and that it was unlikely, therefore, that the said Highways Inspector would have missed the alleged defect, unless that section of the carriageway was obscured as alleged.

There were no complaints and/or other accidents recorded in relation to the location of the Claimant’s alleged accident during the 12 month period prior to the same

Judgment

The Trial Judge found that the Claimant, her husband and all the Defendant Local Authority’s witnesses were entirely credible, sincere and genuine.

Although the Claimant’s husband did not witness the Claimant’s accident, he was present at the time and the Trial Judge was satisfied with the Claimant’s evidence regarding the mechanism of the alleged fall. The Trial Judge was also satisfied that the Claimant’s evidence as to the location of the alleged defect was accurate. However, the Trial Judge preferred the Defendant Local Authority’s evidence regarding dangerousness.

The Trial Judge preferred the Defendant Local Authority’s photographs and was not satisfied with the Claimant’s measurements. Counsel for the Claimant submitted, however, that the Trial Judge did not have to make a finding as to the depth of the alleged defect, only as to its overall dangerousness. The Claimant had also suggested that the alleged defect was on a slope and that this slope must be taken into account, as this allegedly increased the risk. However, the Defendant Local Authority argued that the focus would be on the depth of any alleged defects and that the slope at the relevant location did not increase the risk in any event.

The Trial Judge held that the Claimant had failed to prove that the alleged defect was dangerous and did not consider that the same presented a real source of danger at the time of the Claimant’s alleged accident. Again, the Trial Judge was appreciative of the strength of the Defendant Local Authority’s witness evidence and particularly the relevant Highways Inspector’s post-accident measurements taken when the alleged defect was accessible.

As such, the Claimant’s claim was dismissed.

Although he did not need to do so, the Trial Judge did comment upon the Defendant Local Authority’s potential Section 58 Defence and was satisfied that this would have succeeded had he found that the Claimant had proved dangerousness in accordance with Section 41 of the Highways Act 1980.

The Trial Judge found that the highway was correctly categorised and that the relevant intervention level for this particular highway was, therefore, also correct, despite the Claimant’s submissions to the contrary. The Defendant Local Authority’s system was entirely appropriate and had been adhered to. The Trial Judge agreed that the Defendant Local Authority’s post-accident ad-hoc inspection undertaken prior to notification of the Claimant’s claim was frustrated by the parked van, but it was completely reasonable for the Highways Inspector not to look under vehicles for safety and practical reasons.

Comment

Although he recognised the efforts and various arguments made by the Claimant in an attempt to persuade him otherwise, the Trial Judge was not persuaded to find in the Claimant’s favour.

The Defendant Local Authority was able to deflect the Claimant’s arguments through a strongly pleaded Defence, detailed witness evidence, submissions and reliance upon relevant case authorities.

This was a Multi-Track matter claimed up to £100,000.00. The Trial Judge’s decision, therefore, resulted in substantial savings for the Defendant Local Authority in both damages and costs.

Tom Danter is an Associate at Dolmans Solicitors.