Cenet (nee McGlennon) v Wirral Metropolitan Borough Council [2008] EWHC 1407 (QB)

[2008] EWHC 1407 (QB)Case No 5BI03235
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRYDate 26/06/2008
Before
MRS JUSTICE SWIFT DBE
Between
JEANETTE CENET (nee McGlennon)Claimant/WIRRAL METROPOLITAN BOROUGH COUNCILDefendant/
Mr Peter Cowan (instructed by Weightmans LLP) for Defendant/ApplicantMr Peter Kidd (instructed by Haworth and Gallagher, Solicitors) for Claimant/RespondentHearing Hearing date: 6 June 2008
JudgmentThe Hon Mrs Justice Swift DBE :The application
[1]On 3 May 2007, in the Liverpool County Court, His Honour Judge Platts gave judgment for the claimant against the defendant in a claim for damages in respect of a highway tripping accident, subject to a finding of 30% contributory negligence. He awarded damages of £2,275 and costs. He refused permission to appeal. On 6 June 2008, I heard an oral application for permission to appeal, an order having previously been made by Mr Justice Mackay that the appeal should be dealt with at the same time if permission was granted. Because the hearing finished late in the day, I reserved judgment.

The circumstances of the case

[2]The claimant was born on 3 December 1969. She was 32 years old at the time of the alleged accident. Her case was that, on 10 May 2002, she was delivering leaflets to houses on Chatham Road, Rock Ferry, Wirral, the street where she lived. As she was beginning to cross the road, her foot caught in a depression and, as a consequence, she lost her balance and fell, sustaining injuries to her wrist, hand and thumb, together with bruising to both knees. Her evidence was supported by that of one witness, Mr John Maguire, who was also a resident of Chatham Road and who was said to have been delivering leaflets with her. He claimed to have witnessed the accident.[3]The claimant alleged that her accident had occurred by reason of the defendant’s failure properly to discharge its duty as the highway authority. In its Defence, the defendant put the claimant to proof of the happening and circumstances of the accident. It averred that the part of the highway to which the action related was not, at the material time, dangerous to traffic and that there had not therefore been any breach of section 41 of the Highways Act 1980 (the 1980 Act). It was contended also that if, contrary to the defendant’s primary case, the relevant part of the highway was dangerous, the defendant had taken all reasonable care and thus had a statutory defence under section 58 of the 1980 Act.[4]The judge found that the accident had occurred in the manner alleged by the claimant, and that the relevant part of the highway was dangerous. He rejected the defendant’s defence under section 58.[5]The defendant’s Grounds of Appeal were as follows: i) The Learned Judge was wrong to find that the evidence, taken as a whole, was sufficient for the Claimant to prove that she suffered an accident at the location and in the circumstances alleged by her. ii) The Learned Judge was wrong to find that the defect over which the Claimant said she tripped was a dangerous defect such as to represent a breach of the Defendant’s duty under Section 41 of the Highways Act 1980 to maintain the highway. iii) The Learned Judge was wrong to find that the Defendant had not taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the highway was not dangerous for traffic, and thus was wrong to reject the Defendant’s defence under Section 58 of the Highways Act 1980.

Ground 1

[6]There was a history of involvement by the claimant and her witness in similar claims. Mr Maguire, the alleged eye witness who gave evidence on the claimant’s behalf, had himself submitted claims in respect of three highway tripping accidents in 1998, 2001 and 2004. In addition, he claimed to have been an eye witness to a similar accident suffered by Mrs Barry, another resident of Chatham Road, on 12 August 2004. That accident was said to have taken place on Chatham Road within a few yards of where the claimant’s accident occurred. Mrs Barry’s claim had been due for trial at the same time as that of the claimant (at the direction of the Designated Civil Judge, having regard to the issue of credibility arising from Mr Maguire’s involvement as a witness in both claims); however, she discontinued her action the day before trial.[7]The claimant’s brother and son (as well as the claimant herself) had submitted claims in respect of tripping accidents which were said to have occurred during the same period of six months in 2002. Both the claimant and Mr Maguire had provided supporting evidence for the claim by the claimant’s brother. The claimant’s evidence consisted of an assertion that he was not drunk at the time. The claimant had also provided supporting evidence for one of Mr Maguire’s claims and for the claim made by Mrs Barry. In those cases, she gave evidence of the defects in the road which were said to have caused the accidents and (in Mrs Barry’s case) about her own previous accident.[8]The defendant’s case at trial was that the history of involvement in similar claims was such as to give rise to doubts about the reliability of the claimant’s evidence and that of her witness, and seriously to undermine her case as to the happening and circumstances of the accident.[9]In particular, it was argued that Mr Maguire’s claim to have been an eye witness to two tripping accidents at almost the same location was so inherently unlikely as to be incapable of belief. His credibility, it was said, was further damaged by his own history of claims and by the fact that he had been compelled to admit in cross-examination that, at the time he claimed to have witnessed Mrs Barry’s accident, his flexi-time employment records showed that he was at his place of work, not in Chatham Road. His explanation for this (namely that, on that day, he had suffered a personal hygiene accident and had been allowed to go home to change his clothes without “clocking off”) was, the defendant argued, wholly unconvincing. Mr Maguire’s lack of credibility, coupled with the claimant’s involvement as a witness in previous tripping claims (and a change in her evidence as to the side of the road to/from which she was crossing) was said to have undermined her own reliability and credibility.[10]The judge discussed these matters in his judgment at some length. At page 3, he posed the question as to whether the previous events had the effect of tainting the evidence of the claimant and Mr Maguire. He said that he had to look at whether there was “collusion” which had influenced the evidence in the case.[11]The judge pointed out that the terraced houses in Chatham Road were owned by a Housing Association. There was an active residents’ committee, of which Mr Maguire was chairman. Mr Maguire, the claimant and Mrs Barry were neighbours and knew each other. The claimant had previously worked for Mr Maguire. The judge observed that it was not surprising that the claimant and Mr Maguire had been prepared to act as witnesses in the way that they did. He did not consider that the fact tainted their evidence. He pointed out that the community in which they lived had developed a “compensation culture” in which claims were pursued in circumstances where elsewhere this would not occur. However, he said that the history of claims did require him to look more closely at the claimant’s evidence and at her claim.[12]The judge went on to say that he found the claimant to be “straightforward”. He found that she was not dishonest and was not attempting to deceive the court. He said that he found her evidence “reliable on the whole” and he accepted it. He pointed out that she had not claimed to have witnessed any other accidents; the evidence she had been prepared to give by way of support in other claims was appropriate to the circumstances.[13]The judge observed that he was “less impressed” with Mr Maguire’s evidence and “less convinced that his evidence was reliable”. However, he said that he did not find him “entirely dishonest”. He concluded that Mr Maguire had not seen as much as he had claimed. He had been vague about the details, such as where the claimant fell and where he was at the time. He seemed, the judge said, to be “over egging the pudding” in an attempt to assist. Nevertheless, he found that Mr Maguire was present at the time of the accident and that he did see the claimant fall. To that extent, he found that his evidence supported the claimant’s case. However, he said that it was on the basis of the claimant’s own evidence that he found that the accident happened in the circumstances described by her.[14]For the defendant, Mr Cowan criticises those findings. He submits that the judge did not at any time address the central issue of whether it was credible that Mr Maguire could himself have suffered three tripping accidents and witnessed two similar accidents which occurred within yards of each other. He acknowledges that it would have been open to the judge to conclude that, although a remarkable coincidence, these events had genuinely occurred and to accept (as in fact he did) that Mr Maguire had indeed witnessed the claimant’s fall. However, he argues that, if the judge had addressed his mind to the issue, as he should have done, he may well have found that the explanation of coincidence was untenable. Mr Cowan also points out that the judge made no mention in his judgment of the evidence that Mr Maguire had been at work at the time he claimed to have witnessed Mrs Barry’s accident. He submits that, given the fact that the judge found Mr Maguire’s evidence unconvincing in some respects, the only conclusion reasonably available to the judge on the evidence before him was that Mr Maguire had not been present at the time of the accident and had not witnessed it. He contends that the judge’s finding that Mr Maguire was present was perverse and, if it were to be sustainable, required a reasoned explanation which was not given.[15]Mr Cowan further submits that the judge wrongly assessed the claimant’s evidence in isolation and did not consider the “knock on” effect of Mr Maguire’s lack of credibility on the credibility of the claimant. Her reliance on Mr Maguire’s evidence (which, if it was untrue, must have been known by her to be such) had the effect, he says, of fatally tainting her evidence. This is particularly so, he suggests, in view of her own history, and that of her family, of involvement in similar claims.[16]Mr Cowan referred me to the case of Francis and Othersv Wells and Churchill Insurance Company Ltd [2007] EWCA Civ 1350. That was a road traffic accident claim by three claimants who had been passengers in a car driven by the first defendant. She had driven out of a side street into the path of a car, driven by a man called Senghore, which had been travelling along the major road.[17]The defence was that the accident had been staged. The third claimant had been involved in two other accidents involving Senghore within a period of 11 months. It was said that this could not have been coincidental. In addition, the evidence of the three claimants and of the first defendant was, as the judge had recognised, inadequate and inconsistent. Nevertheless, the judge found for the claimants. The second defendant appealed.[18]On appeal, the second defendant contended that the judge had underestimated substantially the effect and significance of the alleged coincidence of the three accidents involving the third claimant and Senghore. Furthermore, it was argued that the judge had viewed the various pieces of evidence individually in isolation and had not considered the overall picture.[19]Giving the leading judgment of the Court of Appeal and allowing the appeal,

Lord Justice Lloyd said at paragraph 22:

“This is not … one of those cases in which the judge, having heard the witnesses giving evidence and tested their reliability, concludes, in the light of his observation of the witnesses as well as the details of what they say, that he accepts them as essentially truthful, and states what facts he finds to have been proved by their evidence. He was more or less seriously critical of the evidence of each of them. Reading his judgment, one is led to expect, after his view of the witnesses and their stories, he would at some point, as it were, step back, take a view of the whole body of the evidence and make findings as to what facts he held to be established, and otherwise”
[20]He went on at paragraph 25:
“… it seems to me that on this occasion he [the judge] failed to take a crucial step in his assessment of the evidence. He should have looked at it as a whole and considered whether the combined effect of the striking coincidence of three incidents involving [the third defendant] and Mr Senghore, and all the difficulties and inconsistencies in the evidence of the four witnesses, was sufficient, as whole, to satisfy himself that the claim was not genuine, or at least to show that the claimant’s cases were not proved on the balance of probability. In so doing he should also have addressed expressly the question of what facts he found to have been made out by the evidence. As I see it, his conclusion in favour of the claimants is the result of reasoning and analysis other than assessment in the light of the content and the manner of their evidence. He did not at any point step back from the details of the evidence and review the impression that it left on him as a whole.”
[21]Mr Cowan submits that the judge in the present case fell into similar error. Like the judge in Francis, he did not at any point “step back” and look at the overall effect of the evidence of the claimant and her witness. Nor, if his view was that Mr Maguire had, by an extraordinary coincidence, witnessed two tripping accidents, did he make that finding or give any explanation for it. Mr Cowan cites the case of English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409, a decision of the Court of Appeal which is authority for the proposition that, in respect of any issue the resolution of which is vital to his conclusion, a judge should not only identify it but should also give a proper explanation of his finding in relation thereto. Mr Cowan submits that the judge’s failures to address and make findings in relation to Mr Maguire’s evidence and to look at the overall picture amount to flaws in the decision-making process. Had he addressed the relevant matters, he may well have reached a different conclusion. In those circumstances, Mr Cowan submits that I should grant the application for permission to appeal, allow the appeal and remit the case for re-hearing.[22]For the defendant, Mr Kidd submits that the nature and extent of the coincidence involved in the present case is very different from that in Francis. Furthermore, in contrast to the position in Francis, the judge in this case made findings on the evidence. Those findings were, Mr Kidd argues, such as he was fully entitled to make.

Discussion and conclusions

[23]The judge found the claimant to be an honest and generally reliable witness whose evidence he could accept. He was less impressed with Mr Maguire, but made an explicit finding as to the extent to which he could accept his evidence. The criticism is that he did not confront directly, and make findings about, the inherent unlikelihood of the coincidence which must have occurred if his evidence about witnessing the claimant’s accident and that of Mrs Barry was true, and that he did not assess the claimant’s evidence with that coincidence in mind.[24]I cannot accept that argument. The judge saw the witnesses and was able to assess them. He did so with the background of the history of claims well in mind. He referred to the need to scrutinise the evidence with particular care in the light of that history. He devoted a considerable proportion of his judgment to this part of the case. He made clear findings about the credibility of the witnesses. The “coincidence” was not of the same order as that in Francis. All three persons involved in the two tripping accidents witnessed by Mr Maguire lived on the same street and the two accidents happened there. The two accidents were more than two years apart. It is not completely inconceivable that a person living on a residential street who is frequently out and about should be a witness to two accidents occurring there. The same cannot be said of the coincidence of two people, apparently unknown to each other, being involved in three separate road traffic accidents within a period of 11 months.[25]Whilst I accept that Mr Maguire’s involvement as a witness and a victim in five separate tripping accidents must raise some suspicions as to his credibility, the history does not in my view point inevitably to the finding that he was lying when he said that he witnessed the claimant’s accident. Furthermore, it seems to me that the judge did address the “coincidence” point to some extent at least in the comments I have referred to at paragraph 11 of this judgment. It is true, as Mr Cowan points out, that at one stage the judge erroneously referred to the fact that Mr Maguire had “got to know about” Mrs Barry’s accident, whereas his claim was that he had witnessed it. However, the judge had previously referred to Mr Maguire having claimed to be an eye witness to the accident and it seems unlikely that he misunderstood the position. The point he was making was that all the persons concerned were neighbours and knew each other and, given that the community in which they live was an abnormally litigious one, the number of claims and the fact that the persons concerned were prepared to act as witnesses for each other was not surprising. It seems that, whilst he did not explicitly address the issue of how Mr Maguire came to have witnessed two separate accidents, he must have considered, as I have suggested, that the circumstance was not so inherently unlikely as to undermine wholly the claimant’s case.[26]Thus, while the judge could perhaps have addressed the issue and effect of Mr Maguire’s previous involvement in claims with greater clarity - and while other judges may have reached a different view about his credibility as a witness and that of the claimant - I do not consider that the judge’s findings and/or reasoning were fatally flawed in the manner contended on behalf of the defendant. He reached a final and concluded view as to the credibility of the witnesses – in particular the claimant - and acted on that view. He was entitled to do so.

Ground 2

[27]Section 41 of the 1980 Act places a highway authority under a duty to maintain the highway. In order to succeed in establishing breach of duty, a claimant must prove that the highway was not reasonably safe, i.e. that it was dangerous to traffic and that there was a failure to repair. The courts have construed the duty as being to maintain the highway to a standard safe for ordinary users “so that it is free of danger to all users who use the highway in a way normally expected of them”: Rider v Rider [1993] 1QB 505 at 514 per Sachs LJ.[28]The defective area which is alleged to have caused the claimant’s accident is depicted in photographs which were before the judge. The claimant could not say precisely where in that area she fell, but the judge found that that was not fatal to her claim. That finding is not challenged. The defective area was situated at the mouth of an old entry, at a point where there was no pavement or kerb; the surface of the entry was composed of large setts and, in the few feet immediately adjoining the tarmacadamed carriageway, of smaller setts.[29]The defect consisted of a depression caused by crumbling of the tarmacadam and was immediately adjacent to the smaller setts. The judge accepted that, at its deepest point, the depression was 35mm in depth (1.38 inches). There were double yellow lines running along the edge of the carriageway at that point and the defect extended out into the yellow line nearer the setts.[30]The judge was referred to the well known case of Mills v Barnsley Metropolitan Borough Council [1992] PIQR P291. In that case, the judge had found that a triangular hole, 2 inches across at its widest and 1 ¼ inches deep, in which the claimant had caught her heel, gave rise to liability under Section 41 of the 1980 Act.[31]In his judgment, Steyn LJ said (at P295): “…in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life. It is important that our tort law should not impose unreasonably high standards, otherwise scarce recourses will be diverted from situations where maintenance and repair of the highways is more urgently needed. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest. The judge’s ruling in this case, if allowed to stand would tilt the balance too far in favour of the woman who was unfortunately injured in this case. The risk was of a low order and the cost of remedying such a minor defect all over the country would be enormous. In my judgement the plaintiff’s claims fails on this first point”.[32]Lord Justice Dillon agreed. He said (also at P295): “Tripping cases are very common … The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all. The question is whether a reasonable person would regard it as presenting a real source of danger. Obviously, in theory any irregularity, any hollow or any protrusion may cause danger, but that is not the standard that is required”.[33]In addressing the issue of dangerousness, the judge in this case observed that Chatham Road was a residential street where there were families including young children. He observed that the defective area was right on the edge of the carriageway in a position where vehicles or cyclists were unlikely to pass. He concluded that, because of the absence of a kerb, it was at a point where pedestrians would be likely to walk if they were to cross the road. The judge said that the evidence of the defendant’s witnesses, Mr Blackburn and Mr Cummings, both of whom were highway inspectors, supported the fact that pedestrians might use the area.[34]The judge went on to say that, in deciding whether the area was dangerous, he could take into account the defendant’s own guidelines as to whether a defect was such as to require repair. Those guidelines specified that, in the carriageway, defects which were 40mm or more in depth required repair, whereas, on the footpath, defects measuring 25mm or more in depth were repaired. He noted that Mr Blackburn and Mr Cummings had inspected the area before and after May 2002 and, applying the defendant’s guidelines for carriageways, had concluded that it was not dangerous and did not require attention. He noted also that the residents’ association had made no complaint about the condition of the area although, he said, “it did not seem to complain generally about defects on the highway”. It is possible that this failure to report was connected with the abnormally litigious attitude which the judge found was displayed by some of the residents of Chatham Road.

The judge concluded:

[35]“In my judgment the defect did represent an unacceptable hazard in the highway. It was not on the pavement but marginally on the carriageway. However it was at a point where people were likely to cross and it was more akin to the pavement than to the carriageway. On the balance of probabilities although I find Mr Blackburn and Mr Cummings did their jobs conscientiously and honestly, I feel that they applied their guidelines too rigidly and they should have exercised more judgement than they did and should have adopted the 25mms standard and not the 40mm standard. I also take into account that it was only 5mms short of highway repair guidelines. In the circumstances I find that it was dangerous and that the Defendants were in breach of Section 41”.[36]Mr Cowan criticises the judge’s finding of dangerousness. He points out that the defect in question was long standing. It had been seen by a highways inspector four months before the accident and considered not to require intervention. It was still there in 2004. There was no evidence that it had caused any accident other than that of the claimant and it had not been reported as dangerous by any member of the public. The highway inspectors who inspected it following the report of the claimant’s accident did not consider it to be dangerous and took no steps to have it repaired.[37]Mr Cowan argues that the judge placed undue emphasis on the fact that pedestrians were likely to cross the road at this point, in preference to other points, because of the lack of kerb and of parked cars. He points out that Chatham Road is an ordinary street in a quiet residential area. There was no evidence of high levels of pedestrian traffic using the pavements on Chatham Road, let alone crossing the carriageway at this point. There are no houses on the side of the street where the entry lies and the entry itself is blocked off by bollards. He submits that these factors were likely to reduce the incidence of pedestrian traffic crossing in the relevant area and the judge should have taken that into account. Mr Cowan submits that the judge was wrong to conclude that the defect was situated in an area that was “more akin to the pavement than the carriageway” and that, in applying the standards of safety appropriate for a pavement to an area which was in fact part of the carriageway, he erred.[38]Mr Kidd submits that the judge was entitled to reach the conclusion he did. He argues that the position here is very different from that in Mills. First, the defect in this case was more substantial than that in Mills. Second, in Mills, the Court of Appeal found that two of the “planks” on which the judge’s decision had been based (i.e. the presence of an impression in soft material at the base of the hole which suggested that the heel of some other person’s shoe had gone into the hole, and the presence in the hole of a blob of mortar or concrete) were flawed. They concluded that, once these two “planks” had “fallen away”, his finding of dangerousness was unsustainable. Mr Kidd argues that, unlike Mills, the conclusion of the judge in this case was not founded on an untenable basis. The judge, he says, was fully entitled to find that the defect occurred at what was an obvious crossing point for pedestrians and that, taking that fact into account, it was dangerous. He argues that I should not interfere with that finding.

Discussion and conclusions

[39]The judge made a finding that the claimant’s accident happened at a point which, because of the lack of a kerb and parked cars, pedestrians using Chatham Road would be likely to choose as a crossing point. Mr Cowan sought to attack that finding, on the basis that is was founded on a misunderstanding of the evidence about the absence of parked cars there. I do not accept Mr Cowan’s submissions on that issue. It seems to me that, on the evidence, the judge was entitled to make the finding he did.[40]Nevertheless, as Mr Cowan points out, there was no evidence that there was an abnormal amount of pedestrian traffic on Chatham Road in general, or in the relevant area in particular. It was not adjacent to shops, a school or other public amenities. There were no houses on one side of the road which, on a residential street, might be expected to reduce the incidence of pedestrians crossing the road, to some extent at least. There seems to me to be force in Mr Cowan’s submission that the judge placed undue emphasis on the extent of pedestrian use of the carriageway at the relevant point.[41]Furthermore, it is clear that, because of the importance he attached to that pedestrian use, he employed, as the context for his findings of dangerousness, the standards to be expected on a pavement, rather than those appropriate to the carriageway. In the passage of his judgment in which he dealt with the issue of dangerousness, he described the defective area where the accident occurred as “more akin to the pavement than to the carriageway”. In fact the photographs clearly show that the defective area was part of the tarmacadam carriageway; the judge himself recognised this when he described it as “right on the edge of the carriageway” and “not on the point of an extension of the pavement area”. It is difficult to see why he regarded the defective area - as opposed to any other part of the carriageway – as being “more akin to the pavement”. After all, the same could be said of any part of any carriageway over which pedestrians were likely to walk. In making that finding, I consider that the judge erred.[42]It was on the basis of that error, applying the standards appropriate to a pavement, that the judge found that the defective area was dangerous. It is clear from the passage of his judgment I have quoted at paragraph 35 of this judgment that his finding of dangerousness was founded on his assessment of the relevant area as being “more akin to the pavement”.[43]If the judge had applied, as I find he should have done, the standards applicable to the carriageway, the question then arises as to whether he could reasonably have concluded that the relevant area was dangerous. He made no criticism in his judgment of the defendant’s system of limiting its repairing activities to defects in the carriageway involving a difference in levels of 40mm. His criticism was that the defendant had wrongly categorised this particular defect. Of course, even if it were accepted that any defects in the carriageway measuring less than 40mm could in general be regarded as not dangerous, this would not mean that there might not be instances of particular types of defect that should properly be regarded as dangerous even if measuring less than 40mm. But there was no suggestion in this case of any specific feature – other than its position in a place where pedestrians were likely to cross – that rendered this area specially dangerous.[44]There was, however, evidence to support the view that it was not dangerous. Despite its presence in the carriageway for at least a period in excess of two years, no member of the public had complained about it. Nor had any accident, other than that of the claimant, been reported as having occurred there. The photographs showed the type of minor defect that is not unusually seen in the carriageway of a road. It is clearly distinguishable from the adjoining setts and could readily be avoided by a person paying proper attention. I have in mind the observations made by Steyn LJ and Dillon LJ in Mills. It does not seem to me that this defect, situated in the carriageway, and in the location that it was, can properly be regarded as “a real source of danger”. The risk it presented was of a low order and the cost of remedying all such defects in the carriageway would be wholly disproportionate.[45]In the circumstances, I conclude that the judge was wrong to find that the relevant area was dangerous. Had he regarded it as part of the carriageway, rather than of the pavement, I do not think he would have reached the same view.

Ground 3

[46]Section 58(1) provides that, in an action against a highway authority in respect of damage resulting from its failure to maintain a highway, it is a defence 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. Section 58(2) provides:
“For the purposes of the defence under sub section (1) above the court shall in particular have regard to the following matters:- (a) the character of a highway, and the traffic which was reasonably 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 a 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…” (a) the character of a highway, and the traffic which was reasonably 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 a 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…”
[47]The defendant’s system for the carrying out of repairs was that defects on the carriageway would be identified and noted for repair if they were 40mm or more in depth and defects on the pavement if they were 25mm or more deep. The highways for which they were responsible were inspected from time to time. The area in question had been inspected in January 2002. Mr Cummings, who had inspected at that time, had not listed it for repair.[48]In the light of my finding as to dangerousness, it is not necessary for me to consider the judge’s findings in relation to the statutory defence in any detail. Mr Cowan argues that, even if the judge had been right to find that the defective area was dangerous, he should still have found that, in implementing its system, the defendant had taken such care as was reasonably required in the circumstances, and that the defence was therefore established. He argues that the fact that the judge had concluded that the area was dangerous did not necessarily mean that a highway inspector carrying out his work properly and consciously could not reasonably have come to a different view. The judge, he says, should have acknowledged and considered that point. In failing to do so, he erred.

Discussion and conclusions

[49]The judge found that the defective area should have been regarded as “more akin to the pavement than to the carriageway” and that, in inspecting it, the defendant’s inspectors should have applied the guidelines applicable to pavements, rather than those relating to the carriageway. Had Mr Cummings done this at his January 2002 inspection, he would and should have identified the area as in need of repair and it should thereafter have been repaired. As it was, Mr Cummings left the area in a state that the judge regarded as dangerous. The judge considered that both Mr Blackburn and Mr Cummings applied the guidelines “too rigidly” and “should have exercised more judgment than they did”. Given these findings – which were all based on the judge’s view that the error in question should have been treated as part of the carriageway – it does not seem to me that, if the judge’s finding of dangerousness were sustainable, it could be said that he was not entitled to reach the conclusion that he did on the statutory defence.[50]As it is, in the light of my decision in relation to Ground 2 of the Grounds of Appeal, I grant permission to appeal and the appeal is allowed.

Cited in 3 later judgments