Compare and contrast!

In 2011 the Court of Appeal examined in two tripping claims the extent to which local authorities’ financial resources could be taken into account. The rulings are hard to reconcile, writes Wendy Mayes.

The two following Court of Appeal cases show the differing approaches taken by judges in tripping claims in respect of the financial resources of highways departments.

Josie Lawrence v Kent County Council (Court of Appeal, 2011)

The claimant fell on a manhole cover that was protruding by around 15 millimetres above the surrounding pavement. The sole consideration at the trial was whether the defect constituted a hazard that created a reasonable foresight of harm and therefore a breach of the duty to maintain the highway, contrary to Section 41 Highways Act 1980.

This trip of 15 millimetres, or just over half an inch in “old money” was held by the judge at first instance to constitute a breach of Section 41. The judge in doing so rejected the evidence of the council’s Highways Inspector who said that he had thought the area did not require attention or repair, and preferred the evidence of the claimant and her relative who said that they thought the area was dangerous. Unsurprisingly the council appealed this finding.

The appeal

Mr Justice Eady, a senior High Court judge, heard the appeal. He went back to basics and immediately rejected the lower judge’s approach, and said that you could not decide such cases on the evidence of the claimant and a relative. He simply looked at the photograph of the defect and the surrounding pavement. He said that he thought it was exactly the kind of defect that you would expect to find when going down The Strand, and that it was part of what a reasonable pedestrian should have to put up with.

He said he was mindful of the fact that local authorities had finite resources, and that they should not pose expected to repair everything. To require that would pose an unreasonable financial burden on society and the council.

Mr Justice Eady, ever the gent, apologised to the claimant, but found against her on the appeal. The result for the local authority was clearly the correct one, and it was interesting that the judge said that he felt that he would like to have known more about the resources available to the council, so he could be doubly sure that he had made the right decision.

So far so good, we now move to …

Wilkinson v City of York Council (Court of Appeal, 2011)

The claimant was cycling in York and the front wheel of her bike hit a pothole in the carriageway. The local authority’s case was that, like Lawrence, there was no reasonable foresight of harm caused by the defect, and therefore no breach of Section 41 of the Highways Act. They also went on to argue that even if there was, then the council had a defence under Section 58 of the Highways Act, because they had a reasonable system of inspection.

At the trial, the defendant’s main witness was the principal engineer for highways, and the evidence came out that the pothole in question was one and a half inches deep, and 12 inches across. This was deemed to be a hazard, and create a reasonably foreseeable risk of harm.

So was a Section 58 defence established? Had the authority taken reasonable care to secure the highway? Was there a reasonable system of inspection? The area was subject to yearly inspections, and was last inspected ten months prior to the claimant’s accident.

According to the guidelines in the Highways Code of Good Practice, the local authority should have a clear carriageway hierarchy, and roads should be inspected according to that. It became apparent in the course of the trial that, according to the Code of Good Practice, the road where the accident took place should have been inspected every three months, whereas in fact it was put in the category requiring inspection every 12 months. The judge asked the Highways Inspector why the categorisation took place, and the witness, probably rather caught on the hop, said that it was due to “financial and manpower resources”.

The judge at first instance found that the frequency of inspection was not sufficient, and that a more frequent system would have picked up the defect, and therefore the local authority was liable. The local authority appealed, and the circuit judge concluded that insufficient account had been taken of the Highway Authority’s financial considerations, and said that the Section 58 defence should succeed. The claimant then appealed to the Court of Appeal.

The appeal

The Court concluded that the Code gives compelling guidance, and the road where the accident took place should have been inspected every three months. If so, the defect would have been picked up and the accident avoided. The guidance suggested inspections every three months, and the only evidence from the council as to the reason for having less frequent inspections was that of the Highways Inspector, namely “financial and manpower resources”. The judgment of the initial trial judge was restored.

Analysis of the cases

One judge seems to take into account financial considerations, and the other does not? What is actually going on?

To make sense of this you have to look at the two parts of the Highways Act. Section 41 places a duty on the local authority to maintain the highway. If it does not, and for example a pothole forms, then there is a breach of that duty. Mr Justice Eady decided that in considering whether there had been a breach of Section 41, he was entitled to look at the financial resources available to the authority. Arguably, if there were plenty of resources for highways repairs, then you could expect minor defects to be classed as dangerous and remedied. If however a breach of section 41 is found to have taken place, then Section 58 in the Highways Act applies, namely that the local authority still will have a defence if it can show that it took such care as in all the circumstances was reasonably required to make the highway safe, usually by having a system of inspection. Here the Court of Appeal said that financial considerations alone would not be a reason for decreasing the number of inspections.

It is a fine distinction, and difficult to resolve.

But really the problem in Wilkinson was that the witness was caught on the hop, and if the local authority does have to reduce the frequency of its inspections, then a detailed explanation by way of witness statement needs to be submitted, including reasons for changing frequency of the inspections, policy decision supporting that, details of any risk assessment balancing the public and private interests etc. And make sure you get the right judge!

Wendy Mayes is an associate at Clyde & Co. She can be contacted on 020 7876 6058 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..