Day v Suffolk County Council & Ors [2007] EWCA Civ 1436

Case No B3/2007/0218

[2007] EWCA Civ 1436

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CAMBRIDGE COUNTY COURT

(HIS HONOUR JUDGE O’BRIEN)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 23 rd November 2007

Before

LORD JUSTICE PILL

LORD JUSTICE SEDLEY

LORD JUSTICE RIMER

Between

DAYAppellant

SUFFOLK COUNTY COUNCIL & ORSRespondent

(DAR Transcript of

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Mr S Brindle (instructed by Messrs Kennedy) appeared for Appellant.

Mr B Cotter QC (instructed by Messrs Greene and Greene) appeared for Respondent.

Judgment

[1]This is an appeal against a judgment of HHJ O’Brien given at the Cambridge County Court on 10 January 2007. The claimant, Mr Douglas Day, claimed damages against the defendants, the Suffolk County Council, for injuries sustained by him in a road accident which occurred on 26 December 2001. The claimant (whom I will now refer to as “the claimant”) succeeded in the claim. In his judgment, the judge expressed the basic facts in this way. “In this action, the claimant Douglas Day claims against the Defendant Suffolk County Council for personal injuries and damage to his motor car in an incident that occurred on a public highway on 26 December 2001 at Needham Street, Gasely, near Newmarket. It was about twenty past nine in the evening. The Claimant was driving his BMW motor car along Needham Street. The road surface was apparently to some extent obscured by snow. The Claimant was driving comparatively slowly, I think about twenty-five miles an hour, and at a point which was never exactly identified but approximately three to four hundred yards from his home, he claims that he drove into a large pothole, each of his nearside wheels going into it in quick succession, and causing such a severe impact that the nearside B pillar airbag activated. Both nearside wheels were damaged and the engine cut out. The noise of the deployment of the airbag caused injury to the Claimant, significant hearing loss in his left ear, and tinnitus.

[2]The road is described in the skeleton argument for this court of the defendants. Needham Street is a rural, single-lane country road. It serves a small number of houses but also supports local farm traffic. It is also used as a rat run by those wishing to get to the A14. A vehicle count conducted in September 2005 revealed that it is used by an average of 292 vehicles a day, of which only eight were heavy vehicles. Needham Street’s narrowness means that for much of its length vehicles travelling in opposite directions cannot pass easily. Notwithstanding this, the national speed limit applied: thus, a car travelling at, say, 15 miles per hour could pose a significant hazard.

The judge continued:

“The Claimant’s case is that the road was not properly maintained by the Defendant as highway authority; it was dangerous to cars because of this pothole. The Claimant relies upon Section 41 Highways Act 1980 and the test in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR 291.”

Section 41(1) of the Act provides:

“The authority who are for the time being the highway authority for a highway maintainable at the public expenses are under a duty, subject to subsections (2) and (4) below, to maintain the highway.”

The nature of that duty was expressed by Steyn LJ in Mills at page 292 to 3:

“In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that: (a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public; (b) the dangerous condition was created by the failure to maintain or repair the highway; and (c) the injury or damage resulted from such a failure. Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority’s reliance on the special defence under section 58(1) of the 1980 Act.”

That section provides, insofar as is material:

“(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 defense (without prejudice to any other defense or the application of the law relating to contributory negligence) to prove that 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 defense 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; (c) the state of repair in which a reasonable person would have expected to find the highway; (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”

. There is an addition to the section which it is not necessary for present purposes to cite.

[3]The judge referred to the statutory defence in that section. He continued:

“There are disputes of fact in this case. Firstly was there a large hole or pothole? The Claimant relies upon his evidence, including the damage to the car and his lay witness evidence. The Defendant, denying there was a large hole, relies upon the evidence of Mr Howe, who had inspected the area both before and afterwards and asserts that there simply was no such defect. Secondly, there is an issue of was the hole present at the time of the inspection in 2001, viz., a few weeks before the incident, that should have been recorded as a defect? Again the Claimant relies upon his evidence and that of relatives and neighbours who live in the same road. The Defendant produce their records which show that no defect is recorded. The Claimant alleges that the inspection must have been inadequate.”

The judge described the claimant’s account of the accident and his evidence that:

“Needham Street is a single lane country road in poor condition with a number of potholes, the tarmac generally breaking up at the edge of the road.”

He said that he was concerned about the ice and was travelling at around 20 to 25 miles per hour. “As he was driving down Needham Street, he suddenly felt the passenger side wheels of his car go over a pothole.…At the same time, there was an extremely loud explosion, so loud that he thought the car had been fired at with a gun, the loudest noise he had ever heard. The car came to an abrupt halt and he sat there dazed with his left ear ringing, feeling very shaken, and then he discovered that the passenger side ITS head airbag had deployed and that the loud bang had been caused by the explosive charge used to inflate the airbag. By the time the car had come to a complete halt, he was about one hundred and fifty to two hundred yards from his home. After a while, he was able to restart the engine and drive home, where he arrived quite dazed and in shock, his left ear ringing very loudly and he saw his wife and told her what had happened.” This account of the poor state of the road is supported by evidence from a number of witnesses that he called: his wife, Mrs Day; his father-in-law, Mr Turner; his mother-in-law, Mrs Turner (all of whom live in the area); and a neighbour, Mr McManus. His account of the state in which he was when he reached home is also supported by evidence from his wife. Later

the judge stated:

“I found the Claimant to be a careful and matter of fact witness. I found no reason to question his veracity. If he was in doubt about something or could not remember, he said so. I am satisfied that he told me the truth throughout his evidence, so the question is whether he was mistaken or not. I think it most unlikely that he has made a mistake about the side of the car which suffered two very severe jolts and which resulted in a very, very loud bang which has caused deficit to his hearing a result.”

[4]The reference to the side of the car was because of evidence which the judge considered in considerable detail, about references to the offside of the vehicle having been damaged. The credibility of the claimant was very seriously in issue at the trial. Reliance was placed in challenging his credibility and reliability to discrepancies in documents which were disclosed as to which side of the vehicle was damaged. That issue was dealt with in considerable detail by the judge, who, as I have said, accepted the credibility of the claimant who said he was more familiar with the expression “passenger side” than “nearside” and “offside” and that confusion had arisen. He was from the United States of America. Credibility was also challenged on the basis that the claimant had not gone back to the scene of the accident, either later that evening or on, for example, the following day. He did not go to look at the state of the road which had caused this frightful experience. He was also challenged on the basis that no complaint was made to the county council until August 2003 -- that is, about 20 months after the accident happened -- though he had had previous correspondence with the manufacturers who had replaced the airbag under warranty. His credibility was also challenged on the basis of the evidence of Mr Terry Howe, the defendants’ highways inspector, who claimed to have done an adequate inspection of the road on 28 October 2001 -- that is, eight weeks or so before the accident happened.

[5]It was notwithstanding that challenge, which I have no doubt was very fully made at the trial by Mr Brindle, that the judge reached a conclusion about credibility to which I have referred. The judge was shown photographs of the condition of the road in 2005 and 2006, the standard of repair of which he regarded to be adequate, but that does not throw light on its condition in late 2001. The judge referred to the evidence of Mr Howe:

“24. …Mr Howe has not recorded and does not remember a serious pothole [that is, during his inspections which were conducted at six monthly intervals]. So I have to balance his evidence against that of the Claimant. 25. At the end of the day, I prefer the Claimant’s categorical evidence that each of his nearside wheels dropped into a pothole on the carriageway. In the result, I unhesitatingly accept the Claimant’s evidence as a whole, though I treat him as travelling at the upper limit of his bracket of a speed of twenty-five miles an hour. I am satisfied that the nearside wheels of his car dropped successively into a pothole in the carriageway of Needham Street in quick succession, causing damage to both wheels, and that one or other of the resultant jolts to the whole car caused the nearside airbag to activate. I am satisfied that the Claimant suffered personal injury as a result of this incident.”

Having set out the legal principles, including those stated in Mills to which I have referred,

the judge stated:

“Having regard to these principles, I turn to the facts of this case. I have no doubt that the incident happened as described by the Claimant. I have no doubt that it caused damaged to his nearside wheels, as well as causing the airbag to activate. It would be fanciful to conclude otherwise. I have no doubt that an unmarked pothole in the carriageway deep enough to cause the damage caused to the Claimant’s at least averagely robust motor car driven at twenty-five miles an hour constituted a serious danger to vehicular traffic, and accordingly the relevant part of the highway was dangerous or put another way, anybody looking at that actual hole there that was sufficient to cause that damage would have been able to foresee that sort of damage. I am further satisfied that this particular danger arose from nonfeasance, a failure to maintain. I am further satisfied that this danger caused the Claimant’s accident, damage to his car and personal injury.”

The judge then referred to the defendant’s attempt to rely on section 58(2). He referred to the fact that the council had a system of inspection. He referred to Mr Howe, who knew the road well. He referred to the evidence that Mr Howe, when he had done the October 2001 inspection relied on by the defendants, was travelling at 25 miles an hour. The judge stated:

“I have to say that at first blush inspecting a road surface at twenty-five miles an hour strikes me as being too fast. What is the evidence about it, bearing in mind that the onus is on the Defendants? The defendant has produced no official guidance about what amounts to ‘at a slow speed.’ [He accepted that inspections should be conducted at a slow speed.] There is no expert evidence about it. The burden of proof is on the Defendant on this issue, and at the end of the day I am not satisfied that twenty-five miles an hour is a slow enough speed for a reasonably efficient inspection of the road surface. Having regard to the plain existence of a serious pot hole on 26 December 2001, it seems to me that it probably already existed on 28 October 2001. It is perfectly possible that Mr Howe missed it as he inspected at twenty-five miles an hour. On the balance of probability, I am satisfied that the pot hole existed on 28 October 2001. What I mean by that is I conclude on the evidence that it was more likely than not that it existed at that date. Accordingly, the Defendant cannot rely on the statutory defence and the Claimant has established liability as against the Defendant.”

[6]Mr Brindle, who appears for the defendant in this court as he did below, relies upon the use of the word “possible” in that paragraph. Such reliance, in my judgment, is inappropriate. The judge, following judicial understatement, which sometimes occurred, was using “possible” in the sense of “predictable”. He had stated only in the previous sentence that the correct test is the test of balance of probability, and in my view there is nothing in that point. However, challenge is also made to the judge’s finding of fact in relation to the speed at which Mr Howe was driving. We have been referred to the oral evidence which Mr Howe gave, the point being made that the judge has had regard to the written statement, but not to the oral evidence. It is, of course, difficult on appeal to challenge a finding of fact by a judge who plainly considered the evidence carefully and assessed the witnesses carefully. In any event, I see no merit whatever in this point. When asked of the speed he was travelling, Mr Howe did indeed say “Approximately 20, 25 mile an hour”. That was what he meant by “slow”. Asked about that speed, he replied “Maybe less, maybe more, but no less (sic) than 30 miles an hour. Depends on the situation”. It is accepted that “more” should replace “less” in the second of those references.

[7]In re-examination on the defendants’ behalf at page 307, asked what he was doing while he was on this inspection drive (and plainly everyone had in mind the nature of the road which I have already described by reference to Mr Brindle’s skeleton argument):

“Yes, I am looking ahead and looking to the side”

. In my judgment, there can be no question of the judge’s entitlement to find, first, that Mr Howe was in October 2001 driving at about 25 miles an hour, and, secondly, that it was too fast to make a proper inspection of this road. I add that the judge went on to consider contributory negligence. He came to the conclusion that in the circumstances the claimant drove too fast when driving at 25 miles an hour in the conditions which he described, and also when he, as the judge found, was aware of the condition of the road. The judge put it:

“…aware of the poor state of the road on his own evidence; that it was full of potholes”

. The judge assessed contributory negligence at 40 percent, and that figure is not challenged, assuming that liability is sustained in this appeal. In the result, the judge awarded the claimant the sum of £23,382.99. Thus, the judge found that a six-month interval between inspections was a sufficient discharge of the defendants’ duty to inspect the road. Of course, if there were complaints within the six months of conditions being dangerous, then further considerations would have arisen. He found, and was entitled to find, that there was no adequate inspection on 28 October 2001 and that probably the pothole was there at that time -- the pothole which Mr Howe should have done something about.

[8]The issue before the judge, subject to those already considered, was whether a dangerous defect was present at the time of the purported inspection on 28 October 2001. That has been the principal issue as argued before the judge and in skeleton arguments to this court. The vital finding of the judge on that issue (to be considered, of course, against the background of the evidence which was available to him) is the finding which I have read, that on the balance of probability the judge was satisfied that the pothole existed on 28 October 2001. The judge adopted the correct standard of proof -- that is, proof on balance on probability -- and, as he spelt it out, that it was “more likely than not that it existed at that date”. On behalf of the defendants, Mr Brindle submits that the judge was not entitled to make that inference. There was nothing, he submits, on the basis of which the inference could properly be drawn. Accepting, as he has to for this purpose, that there was a dangerous pothole in December 2001, he submits that there is no evidence as to how big the pothole was, or as to how it got there. Sufficient time had passed to allow a dangerous pothole to have developed. He sought to rely on evidence that there had been problems with this road, and the inference should have been that the wear and tear of the late autumn and early winter was, on the balance of probability, the more likely cause of the pothole, and that it had not been present on 28 October.

[9]On behalf of the claimant, Mr Cotter QC submits that it was an inference which the judge was entitled to draw. Eight weeks after the alleged inspection there was undoubtedly a very large pothole, sufficiently serious to have caused the sequence of events which the judge recited and to which I have referred. Secondly, Mr Cotter relies on some of the evidence of Mr Howe: first, the evidence that work was required on the road at the previous six-monthly inspection in April 2001, and that further work over a more extensive area was required at the subsequent six-monthly inspection in April 2002. He relies on the fact that, following his April 2001 inspection, Mr Howe recommended a resurface. “Q. Now you are putting a request in for the road to be resurfaced with the resources obviously (inaudible). That’s because the road surface is breaking up isn’t it? A. That’s right, as indicated in my job order.” Thirdly, Mr Cotter relies on the evidence of the claimant himself, and of the local family members and neighbour who gave evidence of the bad condition of this road. At paragraph 15 of his statement the claimant said:

“I have never complained to the County Council about the state of the road. This is not something I really do. I am not the type of person who complains about things. Whilst I appreciate that over the time I have lived on Needham Street the road must have been patched up (although I cannot remember any times when it was), any repairs never lasted long and the road was always in a poor state of repair. At the time of my accident, in December 2001, the road was in as bad state as I had ever seen it. There were a large number of potholes on the road and the sides were breaking up quite significantly.”

[10]There was evidence from Mr Turner that the nature of the deterioration in the road surface was gradual, and it is submitted that the judge was entitled to take that into account in assessing whether a pothole, and a dangerous or potentially dangerous pothole, had existed in October 2001. Mr Brindle accepts that there must be some degree of foresight on an inspection, because the inspector would not in fact be back at the road for a period of six months. I consider that a central issue in the case: was a dangerous defect present on 28 October 2001? Was the judge entitled to draw the inference that it was? In my judgment, on that evidence, he was so entitled. Richards LJ, when refusing permission to appeal on paper, subsequently granted by Moses LJ and Laws LJ following an oral hearing, stated that it was open to the judge as a matter of inference to find on the balance of probability that it -- that is, a dangerous pot hole -- existed two months earlier on 28 October 2001.

[11]I have reached the same conclusion, having heard the submissions of Mr Brindle. Judges have to decide whether to draw inferences, often on limited evidence, in cases such as this. They are the fact-finders. The public rely on their experience and knowledge of the case in their judgment as to whether an inference should be drawn. The test was that of balance of probability. Was it more likely than not? In my judgment, HHJ O’Brien was entitled to conclude that it was more likely than not that a dangerous defect had existed on 28 October. I would dismiss the appeal on that ground, and having made the earlier findings which I have in the course of this judgment. However, a fresh point has been raised on behalf of the defendants in the course of oral submissions. Mr Cotter submits that once it is established, as it has been, that there was an insufficient inspection on behalf of the county council, then a finding of a breach of the absolute duty in section 41 is inevitable. He relies on the speech of Lord Hoffman in Goodes v East Sussex County Council

[2000] 1 WLR 1356

, where Lord Hoffman analysed the statutory scheme, and stated that the duty was an absolute one. Lord Hoffman added at page 1362:

“To mitigate the effect of allowing a private cause of action for breach of an absolute duty, the Act gave highway authorities a special statutory defence, which is now in section 58 of the Highways Act 1980. The authority is not to be liable if it proves that it took ‘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.’ Section 58(2) specifies various matters to which the court should have regard in deciding whether the highway authority has made out its defence.”

Lord Hoffman added at page 1368:

“To say that the highway authority can rely upon the defence under section 58 does not seem to me good enough. Section 58 may give the authority a defence to a claim for damages but it is still in breach of the absolute duty.”

Lord Clyde stated also at page 1368:

“All that the plaintiff will know is that there is a defect in the road which has caused him injury and it is reasonable to impose on the authority the burden of explaining that they had exercised all reasonable care and should not be found liable.”

[12]Mr Cotter submits that the judge having found that there was no adequate inspection on 28 October 2001, and the duty being an absolute one, then the liability is established and the defence fails. He carried it to the extent of submitting that, following that principle, even if there were evidence of the pothole having been caused only the day before the accident happened, then there would be a good claim based upon the failure to conduct an adequate inspection in October 2001. It is not necessary to decide that point for the purpose of deciding this case. It has not been fully argued. It was not argued before the judge, and anything that is said about it in this court is obiter. I do have to say, however, that on what I know I am unable to accept that proposition as stated by Mr Cotter. There was a defect in the system of inspection, but the causative effect of that defect must, in my judgment, be considered in deciding whether liability occurs. It seems to me to follow from the wording of section 58(2) that merely to show some breach of a duty to inspect is not always sufficient. I have read the section earlier in this judgment. Section 58(2)(d) provides that a relevant factor is 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 dangers to users of the highway.

[13]If, on the example given by Mr Cotter, the pothole had been created the day before, so that the defendant had no knowledge of it and could not reasonably be expected to know of it, then it would appear to me to be that, even if there was a faulty inspection in October 2001, the claim for damages would fail. However, I repeat that such finding is no part of the decision which it is necessary to make to determine this appeal. For the reasons I have given, I would dismiss this appeal.

[14]Like Pill LJ, I do not accept Mr Brindle’s criticism of the judge for finding that on his own evidence Mr Howe’s inspection on 28 October 2001 had been at too great a speed to have spotted a pothole at the eventual accident site, if there was one. But this by itself goes no distance towards answering the question whether there was such a pothole. The reason why this might have been a critical issue in the present case is, as it seems to me, this. Section 41(1) places on local authorities a strict duty to maintain their highways, a duty to which section 58(1) affords a special defence of due care. What it remains incumbent on the claimant to prove was set out by Steyn LJ in the passage in Mills, which my lord has already cited. Among the things to which section 58(2) requires the court to have regard in relation to this defence is: “(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”.

[15]As Mr Brindle has pointed out, it is the constructive knowledge limb of this provision, “could reasonably have been expected to know”, that affords protection to local authorities which maintain reasonable systems of highway inspection. As he also accepts, what suitable inspection should have revealed has to be aggregated with what the local authority in fact knew. For example, a pothole which has developed since the last routine inspection but is reported by a member of the public will have to be attended to as soon as reasonably practicable if a section 58(1) defence is to succeed. What remains problematical, it seems to me, is whether there is, either in section 41(1) (see Steyn LJ third element in Mills) or in section 58(1), a causative link -- in other words, whether it may be a defence not only that the local authority took all reasonable care, but that even if it did not do so, the accident was one which could still have happened. The example canvassed in argument was a pothole shown to have developed the day before the accident, so that it was inconceivable that any system of inspection and repair, however good, could have dealt with it in time to prevent the accident happening. Mr Cotter’s response is that although it would be a hard case, section 41 would even in that event make the local authority liable. His general proposition, however, is that where it is not known when the pothole developed, a failure to establish a suitable system of inspection will always be fatal to the local authority. By parity of reasoning, or so I infer, he would accept that proof of a suitable system would afford a good defence even if it had missed the pothole in question.

[16]I wish to reserve my opinion, like my lord, on all these questions. They do not have to be answered in this case, for the reason which Pill LJ has given. But there was enough evidence -- just enough -- to permit the judge to infer that the pothole had been present on 28 October when a routine inspection took place, and had been missed because the inspection was conducted at too great a speed.

[17]Even with a 40% reduction for contributory negligence, the claimant, I think, may count himself fortunate. He did not bring his claim until three years after the accident. He had produced not a single witness who could speak directly to the state of Needham Street at the point of the accident at the time of the last local authority inspection before the accident occurred -- evidence of the sort that is routinely heard in such cases. Moreover, no point was taken against him on whether acoustic trauma caused by the triggering of an airbag’s explosive mechanism is within the causative range of a pothole in the road, rather than the consequence of a design fault in the car. It was and is accepted that if a breach of duty is established, as with some hesitation I agree the judge was entitled to find it was, all that remained was to quantify Mr Day’s damage.

[18]It may therefore be that Mr Day has been fortunate, but I too consider that the local authority’s appeal against the judgment in his favour must be dismissed.

[19]I too would dismiss the appeal. I consider that there is no basis for the challenge which Mr Brindle sought to make as to the judge’s finding, that for Mr Howe to perform his inspection of the road whilst travelling at about 25 miles an hour was for him to adopt too high a speed for an efficient inspection. I also agree, albeit with more hesitation, that there was sufficient evidence before the judge, the nature of which Pill LJ has explained, to entitle the judge to find on the probabilities that the pothole over which the claimant drove on 26 December 2001 was in place two months before on 28 October 2001, when Mr Howe carried out his inspection. The essence of the judge’s decision was that Mr Howe missed noticing the pothole because he was not carrying out the inspection with sufficient care. The challenge to those two findings not succeeding, it follows that the appeal must fail. As regards the point raised in the course of argument by Mr Cotter, in particular as to what the legal position would be had the pothole been found to have emerged, for example, within two weeks before 26 December 2001, and on the footing that the judge had found that the defendant had not put in place a proper system of inspection, I agree with my lords that that question does not arise in this case. It also raises potentially difficult arguments in relation to the relationship between sections 41 and 58, and I would express no view on how those arguments ought or might be resolved.

Order

Appeal dismissed