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High Court rejects appeal by cyclist over dismissal of claim following pothole accident

A High Court judge has rejected a claim against a highways authority brought by a cyclist who was injured after she hit a pothole near a roundabout.

In Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) the claimant/appellant had been riding her mountain bicycle on 24 November 2013 on the Bay Horse roundabout having travelled down the A640 New Hey Road, Huddersfield.

She was following her partner, who was also cycling, on to the roundabout. She lost control when she hit a pothole and fell off her bicycle, suffering a comminuted fracture of her right leg with severe displacement.

Ms Walsh subsequently sued Kirklees Council, the highways authority for the roundabout, bringing a claim for breach of statutory duty pursuant to the provisions of section 41 of the Highway Act 1980.

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The claim was defended on the basis that Ms Walsh had slipped off her bicycle and that, in any event, the pothole was not dangerous.

It was common ground that the council was unable to rely on the special defence under section 58 of the 1980 Act because although there had been regular inspections before the accident these had continued after the accident and none of the inspectors had reported a defect.

Therefore if, contrary to the council's case, the pothole was dangerous, the inspections must have failed to "take such care as in all the circumstances of the case was reasonably required" because the inspectors had not considered it to be dangerous.

Ms Walsh's claim against Kirklees was dismissed by His Honour Judge Davey QC in a judgment dated 15 August 2018, following a two day hearing at Bradford County Court on 14 and 15 August 2018.

Judge Davey found that Ms Walsh had hit a pothole and fallen from her bicycle and suffered injuries. However the claim was dismissed. This was because he held that "there is in my judgment simply not enough reliable evidence of the dimensions or conditions of the pothole for me to say it is more likely than not that it presented a real source of danger in the sense identified in Mills v Barnsley Metropolitan Borough Council".

Ms Walsh appealed on the basis that Judge Davey was wrong to find that he could not determine the length and width of the pothole in circumstances where there was a photograph with a tape measure over the pothole so that its dimensions could be determined.

Her counsel argued that the judge was simply wrong to say that there was not enough evidence to find reliable evidence of the dimensions or conditions of the pothole because the tape measure in the photograph showed that the dimensions could be measured at a width of 150 mm (6 inches) and a length of 200 mm (8 inches) with an admitted depth of 40 mm.

Counsel for Kirklees meanwhile submitted that a careful examination of the photographs showed that the judge was right to find that the width and length could not be measured and that Ms Walsh’s counsel was ignoring what the photograph showed about the road material in the middle of what Ms Walsh’s counsel said was the hole.

In the High Court Mr Justice Dingemans dismissed the appeal.

He said: “I accept that if the judge had failed to make use of measurements which could be taken from photographs before the Court then the appeal would succeed because there would have been either a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence.

“At one stage, after a quick look at the photographs taken by [an engineer from Kirklees’ third party claims department] I was attracted by the proposition that measurements as to width and length were there to be seen from the photographs. However, having had the benefit of the excellent submissions from both [counsel], and the opportunity to look again at the photographs taken by [the engineer] in the light of those submissions and to read again the judgment of the judge, I have come to the conclusion that the judge was right to find that ‘there was not enough reliable evidence of the dimensions or condition of the pothole to say it was it is more likely than not that it presented a real source of danger’.”

Judge Dingemans said this was because it was not possible to determine what effect the road material underneath the tape measure, together with the road material in that part of the relevant area nearest to the roundabout, had on the measurements of the pothole.

He added: “It is apparent that the judge took careful note of all the relevant evidence and placed considerable reliance on the evidence of the inspectors when making the finding of fact that Ms Walsh had not proved that the pothole presented a relevant danger. All of this was a question of fact for the judge. There was, in my judgment, no justiciable error of approach which would permit me to set aside the finding that was made by the judge.”

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