AC & Anor v TR & Anor [2012] EWHC 796 (QB)

[2012] EWHC 796 (QB)

Case No HQ08X01957

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 29/03/2012

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

Between

(1) ACFirst Claimant

(2) DCSecond Claimant

Devon County CouncilPart 20 Defendant

Christopher Sharp QC and Matthew White (instructed by Greenwoods) for Defendant and Part 20 Claimant

Lord Faulks QC and Angus Piper (instructed by Veitch Penny Solicitors) for Part 20 Defendant

Hearing Hearing dates: 17 th– 24 th January 2012

Judgment

[1]This Part 20 claim arises out of a road traffic accident (‘RTA’) on 20th November 2006. On the Claimant’s application by an order of Swift J on 15th November 2010 and of Master Foster of 26th November 2010, the parties other than Devon County Council (‘Devon’) are referred to by initials only. The anonymity orders are continued on the basis of medical and other evidence applying CPR 39.2(4) and the need to protect vulnerable claimants in accordance with the principle set out in LK v Sandwell & West Birmingham NHS Trust

[2010] EWHC 1928

. By agreement the trial was on liability only with quantum issues to be dealt with, if necessary, at a later date.

[2]The RTA occurred on the C25 road between Honiton and Smeatharpe as TR in his Land Rover was overtaking another vehicle, a Vauxhall Vectra. When overtaking he drove into the offside lane, encountered difficulties, the offside tyres of the Land Rover went into a potholed area at the side of the metalled surface and TR lost control of his vehicle after he steered left out of the rut onto the carriageway. His vehicle swerved across the road and collided with trees on the nearside verge of the road. The Claimants suffered catastrophic injuries. AC, who was rendered tetraplegic and suffered a traumatic amputation of one arm in the accident, was paid a lump sum of £3 million and periodical payments of £275,000 index linked per year for life. DC, who suffered brain and multiple skeletal injuries was paid a lump sum of £1,250,000.

[3]TR admitted liability but brings a claim against Devon as the Highway Authority for breach of its duties under Section 41 of the Highways Act 1980 (‘HA’). Devon denies liability under Section 41. If liability under Section 41 were to be established, they rely upon the statutory defence under HA Section 58. If they were to fail to make out their statutory defence, Devon contend that TR was contributorily negligent. There is also a claim in negligence although at trial the argument was principally directed to the statutory claim. Statutory references in this judgment are to the HA unless otherwise indicated.

Relevant Statutory Provisions

[4]The Highways Act 1980 41(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway. … 58(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 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 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; but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions. … 329(1) … “maintenance” includes repair, and “maintain” and “maintainable” are to be construed accordingly… (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;

[5]At the hearing of the Part 20 claim, Christopher Sharp QC with Matthew White represented TR and Lord Faulks QC with Angus Piper represented Devon. The following witnesses gave evidence for TR: Aron Lockyer, the driver of a vehicle immediately behind TR’s Land Rover; PC Stuart Parratt, the police officer who attended the scene, took photographs and prepared a Collision Report; Dr Leek, a collision reconstruction expert and Robert Luck, a highway maintenance expert. For Devon the following witnesses gave evidence: Stephen Tucker, a Highway Maintenance Technician, John Ashplant who is employed by South West Highways as a Highways Inspector and Dennis Willmington, Head of Highway Management. All save for Mr Ashplant are employees of Devon. Expert evidence for Devon was given by Christopher Anderson on Collision Reconstruction and by Adrian Runacres on Highway Maintenance. By agreement between the parties the witness statements of Michael Bird, Chief Engineer of Devon, Dennis Button of Kent Highways Services, John Robinson of Cumbria County Council; Lesley Richards of Tameside MBC and Peter Agent of Surrey County Council were accepted as evidence. The Court also viewed a DVD of sections of the C25 leading up to and including the stretch of road where the accident occurred. The Relevant Facts The State of the Road

The Relevant Facts

[6]The accident took place near Limers Cross in Devon when TR was driving his Land Rover on the C25 north towards Smeatharpe between Limers Cross and Ewin’s Ash.

[7]The following features of the relevant section of the C25 were not in dispute: i) It was a rural road known to be used by heavy vehicles and agricultural plant; ii) Such traffic was known frequently to override the metalled edges of the carriageway and damage the verge and carriageway edge; iii) The verges in this section of road were known to be soft throughout the year.

[8]Soft verges were more susceptible to damage. Damaged verges deprive the carriageway edge of support leading to a greater risk of failure.

[9]Devon described the C25 as a typical rural road. In the stretch of road where the accident happened the single carriageways were separated by a broken white line. There were also white edge lines. It can be seen from the video that road markings on nearby sections of the C25 vary. In some places there is no centre line and in others no edge lines.

[10]The relevant stretch of road was straight, giving drivers an opportunity to overtake after a winding section.

[11]Shortly after the accident PC Parratt and, one or two days later, Mr Tucker took measurements of the width of the metalled surface of the relevant stretch of road, the potholed area and the extent of intrusion of damage into the metalled surface. PC Parratt also measured the depth of the potholes near the point of greatest intrusion. He took photographs and prepared a report. TR visited the scene of the accident on the day after the accident and took photographs. Dr Leek visited the site on 24th and 25th May 2011. He prepared a Collision Reconstruction Report on 23rd June 2011 following his consideration of material made available to him and a telephone conversation with PC Parratt to clarify his measurement of road width in his report. Mr Anderson visited the site on 2nd February 2011 where he met Mr Tucker. He took photographs and measurements. Mr Anderson prepared his report on 3rd May 2011 following consideration of material made available to him.

[12]The collision reconstruction experts prepared a joint statement dated 29th October 2011 (‘the CEJS’). There was no material difference between the evidence of PC Parratt, Mr Tucker and the reconstruction experts as to the length of the potholed area, the width of the metalled surface in that area and state of the edge of the eastern (offside) carriageway. There are some differences in the evidence about the width of the intrusion of the damage into the carriageway and the depth of the deepest pothole.

[13]The reconstruction experts summarise in paragraph 5.6 of the CEJS measurements made by PC Parratt. Apart from comments on the measured depth of the pothole, the following recorded observations made by PC Parratt were uncontroversial. “MPC Parratt recorded the following: i. The road was approximately 5.2 metres wide (he does not say, but we understand that his measurements would have been across the metalled surface). ii. The overriding damage began about 168 metres past the start of the nearside grass verge at the Limer’s Cross road junction and extended for about 51 metres, ‘leaving a large pothole at the side of the road’. iii. The ‘pothole’ varied in width. It was approximately 550 mm wide at its widest point, the greatest intrusion of the pothole into the road was by approximately 400 mm. iv. The pothole was approximately 80 mm deep. v. The point of maximum intrusion of the overriding into the road was about 15 metres along the road from the southern end of the overriding damage. The curved tyre mark on the road began about 32 metres from the southern end of the damage and thus about 17 metres beyond the point of maximum intrusion.”

[14]Mr Tucker’s measurements, set out in paragraph 5.7 of the CEJS give a similar length of overriding damage, 50.8 metres, to that reported by PC Parratt. Although his figures measured the width of the metalled road close to the point of greatest intrusion as 5.1 metres, in oral evidence he could not remember measurements at the point of greatest intrusion. The CEJS records that Mr Tucker measured the width of the road inside the edge of the carriageway lines as 4.7 metres.

[15]The collision reconstruction experts recorded that the white edge lines were about 90 to 100mm wide. When they visited the location in 2011 they measured the road width between the inside edges of the carriageway lines as being 4.6 to 4.7 metres. The width was divided equally by the centre line marking into opposing lanes of about 2.30 to 2.35 metres across.

[16]Paragraph 5.3 of the CEJS records that:

“The various post-incident photographs show that intermittently along the length of the overriding the erosion of the metalled surface extended up to or past the edge of the carriageway line into the southbound lane. Sections of the edge of carriageway line were ‘missing’ because the metalled surface up to and beyond the line had been eroded.”

[17]The CEJS at paragraph 5.8 records Dr Leek’s then view that if the width of road within the carriageway lines was 4.7 metres the greatest intrusion was about 200mm into the road. If the width of the road was 4.6 metres then the intrusion was about 150mm. Mr Anderson pointed out that from his measurements the distance from the inside of the edge line to the edge of the road was not equal on each carriageway. In the CEJS it is recorded that Mr Anderson then considered that the intrusion into the offside carriageway at the worst place most probably extended about 100mm beyond the inner edge of the edge of the carriageway line into the southbound lane. In paragraph 5.3 of the CEJS and in his oral evidence Mr Anderson accepted that the intrusion might have been 50% more than that, 150mm. He did not think that it would have been 200mm.

[18]On the evidence set out above I find that at the point of greatest intrusion the overriding damage extended about 150mm into the carriageway.

[19]Photographs and evidence show that there was a line of potholes in the damaged edge of the road and the soft verge leading to, at, and beyond the point of greatest intrusion. Mr Anderson describes the damage to the edge of the road shown in the photographs as in the form of a series of potholes rather than a continuous rut.

[20]In paragraph 4.3 of his report, PC Parratt described the length of the potholed area as ‘a large pothole’. He gave oral evidence about the depth of the pothole. He took a series of measurements. The deepest was 8cm measuring the depth of water. Photographs taken at the time of the accident showed the base of a traffic cone covered with water in one part of the pothole. TR gave evidence that on the day after the accident he believed he tested the depth of the water in the pothole with his hands. He thought it was 4-5 inches but observed that he was trying to recollect events four to five years ago. Mr Ashplant gave evidence that he takes a broom handle with him for safety inspections which he uses for measuring water filled potholes. The relevant measurement is the depth of the pothole not the depth of the water. Dr Leek explained that the depth of the water is not the depth of the pothole. The pothole was likely to be deeper than the depth of the water.

[21]Devon accept that the rutting was such that it would have been repaired if seen, albeit that their intervention level for overriding damage is a depth of 100mm and they maintain that the ruts did not appear quite to have reached that level.

[22]On the balance of probabilities I find that the deepest part of the pothole into which the Land Rover’s tyres went was more than 8cm, on the basis that PC Parratt measured the depth of the water and that the depth of the pothole would be greater than the water held in it. However the evidence does not establish by what margin the depth exceeded 8cm.

Where the Land Rover entered the rut

[23]The accident reconstruction experts agreed that when TR’s Land Rover overtook the Vauxhall Vectra:

“6.3.ii. For each vehicle central in its lane, the lateral separation between the door mirrors on each vehicle would have been 435 to 485mm (depending on the width of the road inside the edge lines of 4.6 or 4.7 metres). iii. For the Vauxhall car central between its road markings and the Land Rover with the offside edge of its offside tyres running immediately against the edge of the road marking, the separation between the vehicles’ door mirrors would be 700 to 775mm (depending on the width of the road inside the edge lines of 4.6 or 4.7 metres).”

[24]The width of the Land Rover’s tyres was 235mm.

[25]Mr Thorne, the driver of the Vauxhall Vectra, estimated that as he travelled along the straight section of road before the accident, his speed was about 35-40mph. TR also estimated the Vauxhall’s speed at about 35-40mph. He would have accelerated to overtake.

[26]In his first statement to the police Mr Lockyer, who was driving his van behind TR’s Land Rover, estimated the Land Rover’s speed when overtaking at between 60 and 70mph. In a statement for these proceedings he said that the speeds given in the first statement were a ‘best guess’. He said that four years after the accident he felt that he could not give a definite answer as to the vehicle’s speed. Mr Lockyer had described TR as overtaking normally. He said he would not have done so if TR had been overtaking at excessive speed. For the purposes of his report, Mr Anderson proceeded on the basis that the Land Rover’s speed on overtaking was around 45mph.

[27]On the evidence I find that the speed of the Land Rover on overtaking was about 45mph. It would have been surprising if the driver of a vehicle travelling at about 25mph faster than the car it was overtaking would be described as overtaking normally. Despite Lord Faulks’ efforts in cross examination to try to establish that Mr Lockyer was partial, he was an impressive witness whose evidence at trial I accept.

[28]The experts agree as recorded in paragraph 9.5 of the CEJS that the point where the Land Rover regained the road surface would have been less than 17 metres from the point of maximum intrusion of overriding across the road. This was the distance to the beginning of the tyre mark indicating where the Land Rover crossed the road after it came out of the rut. The experts stated that the point where the Land Rover regained the road surface would have been less than 17 metres from the point of maximum intrusion. The experts agreed that:

“At any speed within the range described by witnesses this distance would have been covered in less than about 0.7 seconds. This is a very short time for a driver to have responded and for his steered course to change.”

[29]Mr Anderson at paragraph 4.39 of his report estimated that the offside tyres of the Land Rover left the damaged area at the edge of the road about 4 metres prior to the tyre mark recorded on the scale plan. If the Land Rover’s speed had been about 45 mph, it would have passed over the whole length of the overriding up to the point where Mr Anderson supposed it regained the road surface in about 1.35 seconds.

[30]Dr Leek at paragraph 7.4.5 of his report considered that:

“The position of the tyre mark compared to position of the greatest intrusion into the road of the potholes, would be consistent with [TR’s] tyres entering the potholes at or around the area of maximum intrusion, but that cannot be determined for certain and it might be that his tyres entered the potholed area before that.”

[31]In giving evidence, TR said that he must have touched the white edge line because that was where he went into the rut. He had no recollection of going onto or over the white line. TR stated that when he pulled out to overtake the Vauxhall:

“At that point I became aware of what seemed like roughness on the road surface or possibly a pothole because I remember my steering becoming very uneven. It seemed that the road just disappeared from under me. I can recall the Land Rover and steering pulling to the right hand side. I then remember either my brother-in-law or my sister saying something along the lines of ‘watch out for the potholes…’ It was not a series of potholes but rather a single ‘bump’ when the Land Rover entered it.”

[32]Mr Lockyer, who was driving behind TR said that the Land Rover went into the rutted area and then ‘spat out’ again. It was almost instantaneous that the Land Rover was dragged in and ‘spat out’.

[33]In my judgment on the balance of probabilities the Land Rover entered the potholed area before the point of maximum intrusion into the road and travelled along a rutted potholed area. I reach this conclusion principally on the short time; 0.7 seconds, it would take a car travelling at 45mph to travel from the point of maximum intrusion 14 metres to where the Land Rover is likely to have come out of the rut. The experts were agreed that this was a very short time for a driver to have responded and steered left to change course.

[34]It is uncontroversial that there was overriding damage to the carriageway for a length of 51 metres including the stretch of road before the point of maximum intrusion of damage. On the basis of the evidence set out above TR’s Land Rover’s offside wheel or wheels came off the undamaged part of the metalled road and travelled along rough ground, probably potholes. It accords with TR’s description of his experiencing driving over rough ground, probably potholes, from his evidence that a passenger in the Land Rover shouted to him to watch out for potholes, from Mr Lockyer’s account and from the evidence of the collision reconstruction experts of the effect of being pulled to the right by being in a rut or pothole.

[35]The police scale plan exhibited as Appendix C to Mr Anderson’s report shows that there was a length of damage to the metalled surface of the offside carriageway of the road leading up to the point of widest intrusion of damage into the road. Police photograph number 27 also exhibited to Mr Anderson’s report shows that the white edge line was not visible or barely visible in sections of this length of damaged surface.

(b) of his closing submissions that:

“It cannot clearly be seen that there was any defect in the white line before the point of maximum intrusion.”

[36]The contemporaneous observation of Mr Lockyer in paragraph 12 of his statement for the purpose of these proceedings was that:

“I noticed that one or both of the offside wheels had entered a rut where the road and white line on the edge of it had broken away.”

[37]TR had no recollection of being near or on the white edge line. He said that he thought he could complete the overtaking manoeuvre within the white lines. He gave evidence that he went to look at the road and took photographs on the day after the accident. He said that he knew that he had not gone over the white line. In cross-examination he agreed that if he had gone over the white line, in hindsight that would have been a miscalculation and that the photographs showed that for the Land Rover to have gone into the rut he would have had to go over the white line. However he did not believe that at any stage he went over the white line.

[38]Having been involved in such a serious accident, TR may not have a clear recollection of whether he crossed the white edge line. However his belief that he did not do so is supported by the contemporaneous statement by Mr Lockyer that the Land Rover’s offside wheels entered the rut where the road and white edge line had broken away. It is also consistent with the police photograph which shows that the offside white edge line in the stretch of road leading up to the point of greatest intrusion of damage into the carriageway was missing or at best difficult to see because of the damage to the edge. I have taken into account the evidence that further damage to the edges may have been caused by the emergency vehicles coming to the scene after the accident but Mr Lockyer’s observations were made before they arrived.

[39]On the balance of probabilities I find that the wheel or wheels of TR’s Land Rover entered the pothole on the stretch of road before the point of maximum intrusion where the offside edge had crumbled and the white edge line was missing or difficult to see.

Driving out of the rut

[40]Mr Lockyer said that the Land Rover was dragged into the ditch and spat back out again. When the Land Rover pulled left so that its offside wheels returned to the tarmac Mr Lockyer stated that the sudden gaining of grip and traction shot the Land Rover across the front of the Vauxhall (although the vehicles did not collide) towards the near side of the road. He observed a ‘snake like effect’ of the Land Rover travelling across the road. The Land Rover left the nearside of the road, travelled over a grass verge and collided with trees at the other side of a ditch.

[41]The collision reconstruction experts agree that:

“8.3 The driver of the Land Rover car responded to the instability that he perceived and made a rapid steering input to the left. 8.4 Having been steered to the left the Land Rover car regained road surface. While there could have been some resistance to the steering response due to the inside of the front offside wheel coming up against the edge of the damage, we consider it unlikely that this constraint was substantial and thus we consider that the steering input by the driver of the Land Rover car was essentially a single action. That is to say, we do not consider it likely that the driver was caused to apply additional steering to overcome any such resistance to the tyre regaining the road surface. 85. The steering input was of such degee [sic] that the Land Rover car swerved towards the nearside of the road and the driver was not able to correct the steering in sufficient time to remain on the road. The alignment of the tyre mark across the road and tyre furrows on the nearside verge suggest that as the car travelled across the road the driver of the Land Rover car had applied corrective steering (to his right) and the car had started to turn back that way when it left the road to the nearside.”

Other evidence relating to whether the relevant stretch of road was dangerous for traffic

[42]There was a difference of opinion between the witnesses for TR and for Devon as to the use to be made of the metalled surface of the road beyond the edge lines. PC Parratt said that the entire width of the metalled surface of the road is available for use. That includes the metalled surface beyond the white edge line. He agreed that the normal position of a vehicle would be between the white lines in the centre and at the edge of the road. He also agreed that if the part of the road beyond the white edge line were used, the driver would have to be aware of the fragility of that part of the roadway. There would be many times when it would be appropriate to go beyond the white line. Mr Luck, the Highway Maintenance expert for the Defendant/ Part 20 Claimant, referring to the guidance on road markings in the Department of Transport guidance on the implementation of the Traffic Signs Regulations and General Directions 2002 (‘the Regulations’), stated at paragraph 5.4 of his report:

“I believe that this supports what has always been my professional view: that the edge lines are there to encourage drivers to keep at least the specified 225mm …away from the verge in normal circumstances, whilst giving more flexibility if needed for the line of travel actually taken than were kerbs to be provided instead.”

Mr Tucker gave evidence that it does happen that vehicles do go wide of the white edge lines. Mr Willmington said that normally he would expect drivers to use the area of road between the white lines but from time to time they will go beyond them.

[43]Devon’s case was that normally drivers should go beyond the white edge lines only in the following circumstances: to pull onto the side of the road to park, if two large vehicles were passing each other on a narrow road and if extra space is needed for overtaking. Mr Luck wrote in his report of 22nd June 2011 that the area of metalled road outside the edge lines should be maintained for purposes such as those listed by Devon.

[44]Devon accepted that the obligation to maintain the highway did not stop at the white edge lines but continued to the extent of the metalled surface. However, Lord Faulks invited the Court to distinguish between carriageway defects that fell inside the edge line and those that were to be found on and outside it.

[45]From paragraph 6.3 of his report, it appears that Mr Luck regarded ‘the defect’ as not only the protrusion of the pothole and the edge line, but also a substantial erosion of the edge line itself. In paragraph 8.5 he wrote:

“It is clear that most of the individual carriageway edge potholes extended a good deal more than 300mm along the road. Because in the photographs they are holding water, it is not possible for me to estimate their depth, but I have no reason to disagree with the reported police measurement of the depth as 80mm. The highways inspector in this case confirms that, if it had been in that condition during his inspection, he would have recorded it as a defect requiring immediate attention and taken the necessary action. Without that action being taken, the driver of any vehicle straying onto the area of the edge line, even if not beyond it, would be likely to experience a tramlining effect, the outcome of which could be especially hazardous at speeds reflecting the excellent visibility and straight alignment, if not width, of the road. It is therefore my opinion that a safety inspector, presented with the defect in this case, should indeed record it as combined pothole and overriding, requiring the response appropriate to the road in question.”

[46]In considering whether, on a balance of probabilities and having regard to all the evidence, the defect was dangerous to traffic prior to the collision involving the Land Rover, Mr Luck concluded:

“9.1 There is a possibility that, quite apart from the effect of the Land Rover’s passage through the rut, it was trafficked by emergency vehicles attending the scene. This would have certainly exacerbated any existing rutting of, and general damage to, the verge and the previously-metalled surface from the carriageway side of the edge line up to the verge. However, I have found that it would not have been sufficient to bring the metalled surface and the edge line into the totality of the condition shown in the post-collision photographs, if it had previously been fit for any of the purposes that I have identified in paragraph 8.1 above. 9.2 Therefore, I conclude that, before any further damage was inflicted during or following the incident in this case, the defect in the photographs was such as to render that part of the highway dangerous to traffic prior to the collision involving the Land Rover, and I have also formed the opinion that this situation had developed at least a number of weeks before the collision.”

[47]The Highway Maintenance expert for Devon, Mr Runacres, in his report of June 2011 noted that Mr Tucker:

“4.21 …identified the section adversely affected by vehicle overriding as extending along the offside carriageway edge between a point approximately 63 metres and a point approximately 12 metres prior to the post-incident rest position of the Land Rover Defender. … 4.23 …on the basis of the information I have seen and discussed above I consider that the edge deterioration and immediately adjacent verge rut present on the offside of the carriageway at the time and location of the incident that occurred on 28 November 2006 is likely to have constituted a safety defect at that time. … 4.24 The main reasons for me holding the above opinion are the facts that the carriageway edge deterioration appears to have extended into the marked southbound traffic lane at that time and that this deterioration is likely to have exhibited a sharply defined change in level to the adjacent rut that may have been as deep as approximately 80 mm and wide enough to accommodate a vehicle tyre.”

[48]Devon’s Highway Safety Manual provides that category 1 defects are safety defects which require immediate or urgent attention. Defects are listed according to their location. Potholes in the carriageway and overriding are category 1 defects: 1.1 and 1.6 respectively. A carriageway pothole is described as “A pothole (sharp edged depression or void) is a safety defect when it is over 40mm deep and it is greater than 300mm in any horizontal direction.” The immediate action required is to ‘record, sign & cone or fill’. Temporary action to be taken is to fill within 24 hours. A permanent repair is to be carried out within 7 days if permanent material has not been used under previous action. Overriding is:

“An area of verge immediately adjacent to the carriageway that is more than 100mm below the carriageway is a safety defect.”

The immediate action required is to ‘record, sign & cone’; temporary action ‘fill verge with suitable material or install reflector posts within 24 hours’; permanent action ‘fill verge with suitable material within 7 days’.

[49]Mr Sharp observed in his skeleton argument of 12th January 2012 at paragraph 12(xi) that “there was a proven history of a significant incidence of carriageway defects – both potholes and overriding – along this road. In every inspection for which there is a record, since June 2003 defects (principally potholes and overriding) had been recorded save for an inspection in July 2006, some weeks (during a dry summer) after the road had been patched and re-dressed.”

[50]The evidence before the Court was that no accidents had been recorded as having taken place on the stretch of road where the accident happened. It was common ground that the straight stretch of the C25 where TR overtook is a prime place for overtaking by northbound traffic after a section of winding road where overtaking is difficult. Further having looked at the records, Devon could not find any report from members of the public complaining about the state of repair of the relevant section of the C25.

Regime for Road Maintenance

[51]The Department of Transport has issued Codes of Practice for Maintenance Management (‘COP’). The first such code was published in 1983 and has subsequently been revised at intervals to take account of new and emerging developments in technology, policy and good practice. The codes issued in July 2001 and in July 2005 were referred to by Mr Sharp. The 2005 code was in force at the time of the accident. In this judgment, references to provisions of the COP are to the 2005 code unless otherwise indicated.

[52]The status of the COP is explained in paragraph 1.3:

“1.3.1 The suggested recommendations of this Code are explicitly not mandatory on authorities. The key best value principle of requiring authorities to involve users in the design and delivery of service implies that authorities should have reasonable discretion to respond to such involvement.”

Because the COP may be a relevant consideration in determining legal proceedings, paragraph 1.3.2 provides:

“…In these circumstances, where authorities elect, in the light of local circumstances to adopt policies, procedures or standards differing from those suggested by the Code, it is essential for these to be identified, together with the reasoning for such differences.”

[53]Paragraph 5.6.1 of the COP provides that the establishment of inspection regimes, level of service, and determining priorities should be undertaken ‘against a clear and comprehensive understanding and assessment of the risks and consequences involved.’

[54]The basis for frequency of inspection is determined by the category of road. Devon categorised the C25 road between Limers Cross and Ewin’s Ash under maintenance category 6 in their Highway Maintenance Manual. Mr Willmington, Head of Highway Management at Devon gave evidence that Devon’s maintenance category 6 is broadly equivalent to the COP category 3b. 6 is a categorisation given to a local distributor road giving access to smaller settlements and recreational attractions. The frequency of inspection Devon applies to category 6 roads is six monthly. The frequency of inspection of the COP equivalent category of road, said by Mr Willmington to be 3b, is once a month.

[55]Mr Willmington stated that the cost of carrying out the extra safety inspection necessary to increase the frequency of inspections from six months to one month on category 5 and 6 roads would be approximately £23,000 a year. The total annual highways budget for Devon is currently £71 million. He stated that given the nature and relatively low traffic volume carried by such roads in Devon his view was that there would be little appreciable difference in the overall risk to road users by adopting the COP recommended higher frequency of inspection.

[56]When asked by Mr Sharp where the approval and adoption of a different regime for frequency of inspections in Devon from that in the COP was to be found, Mr Willmington replied that when they had gone through a Best Value Review, Devon compared their maintenance policies with the COP. The only document Mr Willmington referred to in this connection was a review in March 2004 of the new 2004 Devon Manual in relation to the COP. This must have been the 2001 COP. A note of the review recorded:

“9.4.7 Carriageway maintenance categories 5, 6 and 7 and 8 inspected at lower frequency than national code as traffic flows generally lower and parameters in 9.4.6.”

The note states ‘Complies’ in relation to COP paragraph 9.4.6. Paragraph 9.4.6 of the 2001 COP provides that although the category of the road within the hierarchy, in combination with traffic use, will be the main determinant of inspection frequency, other factors: traffic use, characteristics and trends, incident and inspection history, characteristics of adjoining network elements and wider policy or operational considerations, should be taken into account in deciding whether consideration should be given to increasing or reducing the frequency.

[57]Mr Willmington mentioned the following factors to justify a decision to carry out a six monthly rather than a monthly inspection of category 5, 6 and 7 roads: cost, low incidence of road traffic accidents and traffic flow. He also pointed to the low returns of defects on six monthly inspections of these categories of roads.

[58]There was no evidence that the reasons advanced by Mr Willmington for lower frequency of inspection of category 6 roads than the COP recommendation were considered by or formed the basis for Devon deciding on the lower than recommended frequency of inspection. It is difficult to understand Mr Willmington’s comment when giving evidence that Devon responded in a proportionate way in setting the frequency of inspection. He confirmed that no formal risk assessment had been carried out. Whilst it is for highways authorities in the reasonable exercise of their discretion to set maintenance regimes, the evidence advanced in this case falls far short of establishing that Devon considered all relevant matters in deciding on a 6 monthly rather than 1 monthly regime of inspection of category 6 roads.

[59]Mr Willmington accepted that the C25 road at the site of the accident was not satisfactory but commented:

“We have to make very difficult choices. It is a question of available resources.”

The additional cost of £23,000 per annum out of a budget of £71 million, a 0.03% increase in the highways budget, is a weak justification. Mr Willmington accepted that £23,000 was a perfectly affordable sum. Mr Willmington also stated that traffic flow statistics were not kept before 2011. Indeed Mr Bird, Devon’s Chief Engineer for Traffic Management explained in his statement that traffic counts were not used for the purpose of categorising roads.

[60]Devon relied on evidence that other highway authorities apply a six monthly inspection regime for category 3(b) roads in their area. However it was pointed out by Mr Sharp that Somerset applied a three monthly inspection regime for the C25 road in their county. However Somerset had categorised the road as 4a. The three monthly inspection rate was in accordance with the COP. The rationale for the authorities which applied a six monthly inspection regime for their roads was not provided save for Kent.

[61]From the Road Maintenance experts’ joint statement of 31st October 2011 (‘the RMJS’), paragraph 3.6, it appears that Mr Luck was of the opinion that safety inspections should have been undertaken at monthly intervals. Mr Runacres was “satisfied that the inspection frequency was determined in accordance with the principles and guidance in the national Code of Practice: Well-maintained highways, is in keeping with the policies of some other highway authorities, and is appropriate for the location, nature and importance of pertinent section of the road…” and was “…therefore of the opinion that the six-monthly frequency of safety inspections was adequate in all respects.”

Road Haunching

[62]Mr Sharp referred to the Transport Research Laboratory’s 1994 Report on Road Haunches: A guide to maintenance practice. ‘Haunching’ is the term used to describe the maintenance of the outer edges of the carriageway by partial or total reconstruction of the defective structure, the construction of a new section to widen the carriageway or the construction of a new edge support. The report notes that haunch defects frequently occur outside the limits of the constructed carriageway due to overriding. The report recommends that the decision whether to construct a new edge support will take into account various factors including cost.

[63]In the Road Maintenance Experts’ Joint Statement (‘RMJS’), Mr Runacres agreed that “when carriageway edge and verge rutting defects are repaired without carriageway edge strengthening works being carried out, the defects may well re-occur at some point in the future as a result of repeated overriding.” There was disagreement between the experts as to whether such works would cause the problem to ‘migrate’ along the road.

Road Markings

[64]The road maintenance experts state in the RMJS that:

“2.4 The Traffic Signs Manual Chapter 5: Road Markings, published in 2003 and current at the time of the collision, identifies that centre lines on rural carriageways below 5.5m in width can increase instances of verge overriding and might lead drivers to expect that the carriageway is wider than it actually is. Edge lines are recognised as a safety measure, also helping to protect verges on narrow rural roads. The Traffic Signs Manual 2003 therefore states that, on carriageways less than 5.5m wide, edge lines should be continued but centre lines omitted.”

[65]I have looked at a video of the stretch of the C25 road leading up to, at and after the scene of the accident. It is apparent that there are a variety of road markings: centre lines, centre and edge lines and edge lines on their own.

[66]It is recorded at paragraph 3.5 of the RMJS that:

“Mr Luck considers that the use of centre lines, contrary to the Department for Transport’s strongly recommended advice, is likely to give a misleading impression of the space available for vehicles to pass each other. Mr Runacres has seen nothing to directly link the presence of the centre lines with the circumstances of the collision.”

When did the relevant defects occur?

[67]Mr Ashplant gave evidence that a 40mm deep pothole can develop overnight. Mr Tucker stated that there was no way of telling when the relevant edge failure and edge erosion near the site of the accident occurred. He agreed with Mr Sharp that every time the stretch of road between Limers Cross and Smeatharpe had been inspected, defects had been found.

[68]The highway maintenance experts agreed that:

“The highway defect present at the time and location of the collision is highly likely to have formed after the previous safety inspection, on 25 July 2006. Such defects can develop to an unsafe level in a few weeks, especially at times of the year, such as autumn, when the ground is likely to be wet and relatively slow to dry out. The weather records for the period prior to the collision show it to have been wetter than typical for autumn. The edge deterioration and the adjacent verge rutting at the location where the Land Rover lost control is therefore likely to have constituted a safety defect which would have been identified and made safe, if a safety inspection had been undertaken immediately prior to the occurrence of the collision.”

Submissions of the Parties

[69]Mr Sharp QC for TR submitted that the defect in the part of the road where the accident happened constituted a danger to road users. There was no dispute as to the damaged state of the road: there was overriding damage to the edge of the metalled carriageway so that the offside edge had crumbled and with it the white edge line in some places. Further there was a pothole or series of potholes in the damaged area and adjacent verge. At the time of the accident the potholes were filled with water so that their depth would not have been apparent to drivers. The deepest pothole in the area of the accident measured more than 8cms. There was an area of overriding damage which extended at least 150mm into the highway.

[70]The primary contention for TR was that his Land Rover entered the potholed area at the point of greatest intrusion into the carriageway. Mr Anderson agreed that the intrusion could have been 150mm into the carriageway. Devon treated the issue of whether the Land Rover entered the damaged area before or at the point of greatest intrusion as relevant to whether TR was the author of his own misfortune or was contributorily negligent. In his closing submissions Mr Sharp wrote:

“The simple point is that for Devon to show that TR was even potentially at fault (if crossing onto the white line constitutes fault), they have to prove that he probably went into the defect other than at its point of maximum intrusion.”

If he were not to succeed in establishing that the Land Rover entered the damaged area at the point of greatest intrusion, Mr Sharp contended that in driving on or over the edge line TR was not at fault such that he should be held contributorily negligent.

[71]Mr Sharp submitted that if the edge of the road and verge had not been damaged, TR would probably have completed the overtaking manoeuvre without incident. The defect which intruded into the road was, because of its dimensions, according to Devon’s own categorisation a Category 1 defect requiring immediate attention. As such it was assessed as representing a danger to road users. Mr Sharp asserted that it was not in dispute that a defect adjoining the carriageway which exceeded 40mm in depth and 300mm in breadth was a Category 1 defect.

[72]Mr Sharp contended that but for the defect in and next to the highway, the Land Rover’s wheels would not have been dragged into the rut, as a result of which TR steered to get back onto the road and lost control of the Land Rover which resulted in the serious accident.

[73]Mr Sharp submitted that Devon cannot make out a defence under HA Section 58. Once it is shown that Devon was in breach of their duty to maintain the highway, it is for them to establish that they took such care as in all the circumstances was reasonably required to secure that the part of the highway to which the claim relates was not dangerous for traffic. Mr Sharp contended that Devon have failed to do so. They carried out maintenance inspections on the relevant stretch of road at six monthly intervals and not monthly as recommended by the COP. Whilst the COP guideline was not mandatory, Devon had not advanced any good reason for departing from it.

[74]There was an issue between the parties as to when the defect arose and whether it would have been detected before the accident had Devon carried out monthly inspections. Mr Sharp relied on the evidence of Mr Luck that the defect is likely to have arisen ‘at least a number of weeks rather than days’ before the accident. Mr Sharp contended that Devon have not established that the defects arose less than a month before the accident so that it would not have been detected in a monthly inspection regime.

[75]It was contended that Devon failed to have regard to the fact that the highway tended to become waterlogged, water would seep in under the edges of the road and render it susceptible to failure. It was known that the heavy agricultural vehicles which used the road frequently would override the metalled edges of the carriageway and damaged the verge and the carriageway edge. Notwithstanding the known long standing problem of edge deterioration Devon had not carried out a risk assessment nor implemented permanent haunching repairs as recommended in reports published by the Transport Research Laboratory in 1991 and a second edition in 1994 and a guide to repairing haunches issued in 1991.

[76]Mr Sharp submitted that in breach of the Traffic Signs Manual recommendation Devon had painted a white centre line on the relevant stretch of the C25 notwithstanding that it was less than 5.5 metres wide. A centre line is known to encourage vehicles to the edge of the road and thereby increase the risk of overriding. The video of the C25 in the vicinity of the relevant stretch of road shows a variety of road markings. There was no reason why Devon could not adhere to the guidance in the traffic signs manual on this stretch of road.

[77]Mr Sharp contended that taking into account all the relevant factors listed in HA Section 58, Devon have not made out defence under that provision. Once TR had satisfied all the elements listed by Steyn LJ (as he then was) in Mills v Barnsley MBC [1992] PIQR 291 at page 293, it was for Devon to establish their statutory defence under Section 58. Diplock LJ in Griffiths v Liverpool

[1967] 1QB 374

at page 390-391 held that:

“Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) is not available to it. Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the accident.”

[78]It was said that the facts and circumstances relied upon to constitute breach of statutory duty also constituted negligence by Devon as a result of which TR’s Land Rover went into the damaged area of and beside the C25 with the resultant loss and damage. Mr Sharp relied on Vaile v London Borough of Havering

[2011] EWCA Civ 246

at paragraphs 32-33 in which Longmore LJ held:

“Although Drake v Harbour [2008] EWCA Civ 25 was a very different case on the facts (because there were a number of possible candidates for the cause of a fire in an unoccupied house) the words of Toulson LJ in para 28 are apposite:— ‘where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism.’” to submit that causation should be inferred. ‘where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism.’”

[79]Mr Sharp contended that it is not negligent to drive onto the white edge lines even if TR did so. The police do not criticize drivers for crossing onto and beyond the edge line. Mr Tucker accepted that there is no mandatory requirement to avoid crossing the edge line. He also acknowledged that people regularly do ‘go wide’. There is no provision restraining the use that may be made of the roadway on or beyond the white edge line.

[80]As for over steering out of the defect, Mr Sharp submitted that none of the experts, including Mr Anderson for Devon, said that TR’s driving fell below standard in his response to the position that he found himself in. Mr Luck said at paragraph 7.4.8 of his report:

“I would expect the steering input by [TR] to have been what might reasonably be described as an instinctive response to perceived danger, so that it did not necessarily involve a judgement being made of the amount of steering input to be made.”

Mr Sharp submitted that TR’s reaction in steering sharply away from the defect (if he did so) was a comprehensible reaction falling short of negligent driving. His reaction and steering was not unreasonable in the circumstances.

[81]Mr Sharp sought to distinguish Russell v West Sussex County Council [2010] AER (D) 140 (Feb) in which the Court of Appeal held that a driver had been contributorily at fault in causing her accident. The driver in that case had been driving too fast for the conditions. The Court of Appeal found her to be contributorily at fault on that basis, as was the case in Burnside v Emerson

[1968] 1 WLR 1490

. In Rider v Rider and another

[1973] QB 505

a driver who lost control of his vehicle as a result of carriageway edge deterioration was found one third to blame on the basis that he had special knowledge of the state of the road and was therefore driving too fast. Those features were not present in this case.

[82]Lord Faulks for Devon contended that TR could not establish that the wheel or wheels of his Land Rover went off the carriageway at the point of maximum intrusion of damage. The overriding damage before that point was reached was not a safety defect. It was more likely that TR strayed onto or over the white edge line before reaching the point of maximum intrusion. He contended that the stretch of rutting where it was likely that the Land Rover’s wheel or wheels came off the road was typical of what ‘occurs from time to time on roads like this’. This defect did not represent a danger.

[83]Lord Faulks submitted that if on the balance of probabilities TR did not enter the rut at the point of maximum intrusion, he cannot rely on that defect to found his Section 41 claim. Lord Faulks relied on the judgment of the Court of Appeal in James v Preseli Pembrokeshire District Council [1993] PIQR page 114 in which Lloyd LJ held:

“The question in each case is whether the particular spot where the plaintiff tripped or fell was dangerous. …if the particular spot was not dangerous, then it is irrelevant that there were other spots nearby that were dangerous or that the area as a whole was due for resurfacing.”

[84]Lord Faulks submitted that it does not assist TR that Devon’s inspectors categorised the overriding and pothole defects as Category 1 defects requiring urgent repair. It was said that it is for the Court to decide if and when the relevant sections of the rutting were in fact dangerous to ordinary road users. It was submitted that TR failed to make out his claim that the road was dangerous to traffic. This was a normal rural road where traffic would not be expected to overtake beyond the white edge lines. It was said that in the circumstances in which vehicles could be anticipated to go beyond the white edge lines because of the width of their vehicle or of that coming in the opposite direction the vehicles would be travelling slowly and would not be put in danger by the ruts. Nor would a vehicle crossing the white edge line to park be put in danger by the ruts.

[85]Lord Faulks contended TR has not established that the road was in such a condition as to be dangerous to traffic. It was said that the state of the relevant part of the C25 was comparable to that in Rance v Essex County Council (unreported) CA 21st February 1997.

[86]To illustrate his contention that the road was not dangerous for traffic, Lord Faulks relied on the lack of similar accidents on the relevant stretch of the C25. This was particularly noteworthy bearing in mind that this was the first stretch of straight road where traffic could overtake after a section of bendy road where overtaking is difficult.

[87]Further, Lord Faulks contended that TR has not established that a dangerous defect in the C25 caused the accident.

[88]If TR were to establish a prima facie liability for breach of Section 41, Lord Faulks contended that a defence under Section 58 was made out by Devon. There was no criticism of the efficacy of Devon’s inspections. It was accepted that they instituted repairs promptly when their inspectors detected defects. Rather the main allegation made by TR was that Devon should have carried out maintenance inspections monthly as recommended in the COP. A related argument was that a highway authority which departs from the guidelines in the COP can only rely upon a system if they have carried out a risk assessment.

[89]The standard imposed by Section 58 is one of reasonableness not practicability as was explained by Davies LJ in Pridham v Hemel Hempstead Corporation

[1971] 99 LGR 523

. The frequency of inspections will not be reasonable simply because it was practicable to have undertaken them more frequently.

[90]Lord Faulks contended that six monthly inspections were reasonable. The COP provided guidance only. It was said that regard should be paid to the level of claims and road traffic collisions associated with the C25. Whilst the additional cost of £23,000 per annum of carrying out monthly rather than six monthly inspections on category 5 and 6 roads was affordable, Mr Willmington explained that his view of the appropriateness of six monthly inspections was based on ‘proportionality’ and ‘a balance of risk and available resources’. Mr Runacres expressed the view that departure from the COP recommended frequency of inspections was justified on the basis of the information provided to him.

[91]Lord Faulks relied upon the judgment of Burton J in Stringer v Bedfordshire County Council (QBD 27th July 1999) to contend that the test in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 582

is applicable to determine whether a highway authority’s maintenance regime was reasonable. In Bolam McNair J held at page 587 that a medical practitioner is not negligent “…if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art...merely because there was a body of opinion who would take a contrary view.”

[92]Lord Faulks relied upon evidence that Kent, Cumbria, Tameside and Surrey highway authorities carried out inspections on category 3(b) roads at greater intervals than the one month recommended by the COP. He submitted that the fact that 50% of the sampled highway authorities carried out six monthly inspections on category 3(b) roads was strongly supportive of the reasonableness of Devon’s approach.

[93]Risk assessments were not mandatory. Lord Faulks contended that matters relevant to such an assessment were taken into account by Devon. There was a review of the compatibility of Devon’s highway safety inspection manual of 18th March 2004 with the COP. The note of such consideration shows that frequency of inspections was considered.

[94]Lord Faulks took issue with Mr Sharp’s contention that if the Court decides that Devon’s inspection system is not reasonable so as to satisfy Section 58, then even if a monthly inspection would not have led to a detection of the relevant defect, Devon cannot run a causation defence. It was said that this proposition did not represent the true effect of Griffiths v Liverpool Corporation [2010] AER (D) 140. It appeared that a causation defence was not raised in Griffiths. Lord Faulks relied upon the observations of Otton LJ in Rance in which he held:

“It does not follow that a breach of the Code, however technical, automatically creates a situation of negligence on the part of the highway authority, or, conversely, as Ms Mishcon seemed to suggest, deprives them of the benefit of that defence even though such a breach was not causative of the accident complained of.”

Lord Faulks submitted that on the evidence, a monthly inspection might not have led to the finding of the defect. Accordingly even if there were such, any fault in the inspection system was not shown to have caused the accident and a causation defence was made out.

[95]Lord Faulks contended that there is no obligation to improve a highway or put signage on it. Accordingly there was no obligation to carry out haunching on the relevant stretch of the road so that a more permanent repair was achieved than by patching. Reference was made to the speech of Lord Hoffman in Stovin v Wise

[1996] AC 923

in which Lord Hoffman held at page 958D:

“Given the fact that the British road network largely antedates the highway authorities themselves, the court is not in a position to say what an appropriate standard of improvement would be. This must be a matter for the authority.”

[96]As for the complaint that there was a centre white line on the relevant stretch of the C25, Lord Faulks pointed out that the Traffic Signs Manual 2003 recommendations were not mandatory. In this case the presence of the centre white line in a road of a width for which a centre line was not recommended, encouraged lane discipline for the vehicle which was being overtaken.

[97]Lord Faulks submitted that in any event TR contributed substantially to the accident. It was said that TR was negligent in driving onto or over the white edge line. A prudent driver overtaking on the relevant stretch of the C25 would have remained within the white edge line. There was no need for TR to go onto or over it. Further it was said that on the evidence TR over-steered to exit the rutted area and so lost control of the Land Rover. Lord Faulks relied on Bird v Pearce and Somerset County Council

[1979] 77 LGR 753

and Burnside v Emerson

[1968] 1WLR 1490

to contend that TR should take most of the blame for the accident. In those cases the driver’s contributory negligence was assessed at two thirds.

Discussion

[98]The elements to be established by a claimant relying on HA Section 41 were held by Steyn LJ Mills v Barnsley MBC [1992] PIQR 291 at page 292 to be as follows:

“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, namely, that the authority had taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic. On this aspect the burden rests on the highway authority.”

Was the relevant part of the highway in such a condition that it was dangerous to traffic?

[99]In Rider v Rider

[1973] QB 505

Sachs LJ endorsed the test of reasonable foreseeability in assessing whether the state of a highway constituted a danger. At page 514D he held:

“…it is in my judgment clear that the corporation's statutory duty under [the predecessor to Section 41] is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them - taking account, of course, of the traffic reasonably to be expected on the particular highway. Motorists who thus use the highway, and to whom a duty is owed, are not to be expected by the authority all to be model drivers. Drivers in general are liable to make mistakes, including some rated as negligent by the courts, without being merely for that reason stigmatised as unreasonable or abnormal drivers; some drivers may be inexperienced, and some drivers may find themselves in difficulties from which the more adept could escape. The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make the mistakes which experience and common sense teaches are likely to occur.”

[100]Ralph Gibson LJ expressed the proper approach to dangerousness in James and Thomas v Preseli Pembrokeshire District Council CA 27th October 1992 when he held at page 9F (transcript):

“Thus the test of dangerousness is one of reasonable foresight of harm to users of the highway. But in drawing the inference of dangerousness the court must not set too high a standard. Any defect, if its uncorrected presence is to impose a liability, must therefore be such that failure to repair shows a breach of duty.”

[101]Laws LJ in Jones v Rhondda Cynon Taff CBC

[2008] EWCA Civ 1467

held at paragraph 12 that ‘foreseeability of harm will not in itself entail the conclusion that the highway is unsafe.’ “11. The highway has to be maintained in such a state of repair that it is reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition.”

[102]The standard to which a highway must be maintained was explained by Diplock LJ in Burnside v Emerson [1968] IWLR 1490 at 1497 as a duty “to put in such good repair as renders it reasonably passable for the ordinary traffic of the neighborhood at all seasons of the year without danger caused by its physical condition.”

[103]From the evidence it is clear that the edge of the carriageway on or beyond the white edge line where I have found that the offside wheels of TR’s Land Rover entered the rut was broken and had been damaged by overriding. This can clearly be seen from the photographs.

[104]The evidence does not establish whether TR entered the rut at a point where the white line had crumbled away. Devon admit that there was a defect in the highway on the day of the accident. They accept that the rut was such that it would have been repaired if seen, albeit that it was not clear that the overriding pothole had reached an intervention depth of 100mm. It would, in effect, have been treated as a safety defect. In addition, there was an intrusion of the damaged area into the carriageway of at least 150mm.

[105]Lord Faulks submitted that the state of the road at the entry point of the Land Rover into the potholed area is relevant and not the state of the road further ahead. I accept Lord Faulks’ submission that the overriding damage in this case in sections of the road which were not adjacent to deep pothole did not of itself render the highway dangerous to traffic.

[106]Although, as explained by Lloyd LJ in Preseli at page 5B, the categorisation by Devon of certain defects, including these as category 1 requiring speedy attention, is not determinative of the issue, it is of assistance to the Court in deciding whether the defects render the highway dangerous for traffic. I accept Mr Luck’s categorisation of the defect as ‘not only the protrusion of the pothole and the edge line but also a substantial erosion of the edge line itself. I also accept his conclusions in paragraphs 8.5 and 9.2 of his report that the combined pothole and overriding defect rendered that part of the highway where I have found that the Land Rover entered the rut dangerous to traffic. He was of the opinion that it was in this state prior to any exacerbation caused by the arrival of emergency vehicles.

[107]Although it would not be anticipated that many drivers would drive outside the white edge line that they would do so was not out of the question. Mr Tucker agreed that drivers do go wide. PC Parratt said that the whole width of the metalled surface was there to be used. Devon recognised that the area beyond the white edge lines may be used when overtaking and that they had an obligation to maintain this area. It was foreseeable that a car driven on the edge of the carriageway in the stretch of road leading up to the point of greatest intrusion would encounter the damaged edge, and wheels may go over into the rutted area of potholes by the side of the road and experience a tramlining effect as described by Mr Luck in paragraph 8.4 of his report.

[108]The test set out in Mills v Barnsley is whether the highway is in such a condition that it is dangerous to traffic or pedestrians. In the same period of time pedestrians travel over a much shorter section of pavement than do motor cars over a section of highway. In accordance with Mills v Barnsley, a claimant must establish that the injury or damage for which they claim resulted from a failure to maintain the highway, such that it was a danger to traffic. In most cases because of the pace at which pedestrians travel, the state of the road or pavement before or after the spot where a claimant tripped or fell would not cause the accident. It is therefore only the state of maintenance of the spot where the accident happened which would be relevant. In Preseli and Whitworth v The Mayor, Aldermen and Burgesses of the City of Manchester [1971] (Unreported 17th June), the Court of Appeal were considering tripping cases brought by pedestrians. Therefore the Courts held that what had to be considered was whether the particular spot where the claimant fell was dangerous. It was the state of the pavement at a particular spot which would have caused the trip.

[109]A motor car travelling at 45mph will cover a stretch of road and not stay in one spot. An accident to a motor car may be caused by the state of repair of a stretch of road and not only that of a particular spot on the road. If an accident results from the dangerous state of a stretch of road rather than a particular spot on the road, applying the approach in Mills v Barnsley it is material to consider whether the condition of the relevant stretch of road and not just at one spot was dangerous and whether the dangerous condition was created by the failure to maintain or repair the highway. I therefore do not accept the submission by Lord Faulks that TR can only succeed in his claim if he can establish that the state of the highway was dangerous at the point he entered the rut.

[110]TR entered the potholed area at the side of the C25 and travelled in a matter of seconds along the defect area which included a pothole at least 8cm deep. It was a combination of the following features which TR encountered within a matter of seconds when he was travelling at about 45mph which in my judgment demonstrate that the highway was in such a condition that it was dangerous to traffic: the crumbled edge of the carriageway giving rise to a risk that vehicles travelling on or near where the white edge line was or should have been may tip into the potholed area at the side of the road; the presence of a long rutted area made up of a series of potholes the deepest of which was at least 8cm; the presence of water on the road and in the potholes which made it difficult to judge what was beneath the surface of the water whether on the metalled surface or in the verge at the side of the road.

[111]It is the policy and practice of Devon to repair overriding damage and potholes. There was no criticism of Devon’s maintenance of roads once a defect had been detected. Mr Tucker agreed that if the pothole was 10cm deep it was a Category 1 defect which would have been repaired within a short time. The failure to carry out repairs of the pothole and the overriding damage on the relevant stretch of the C25 rendered it dangerous for traffic.

[112]Dr Leek said at paragraph 8.10 of his report:

“But for the pot holes in the road surface, I can see no other reason for [TR] to have lost control of his car, so (in the absence of some inexplicable event) but for the pot holes he would probably have completed his overtaking manoeuvre of the Vauxhall car without incident.”

On the basis of this and other evidence about the state of the relevant stretch of the relevant section of the C25 and adjacent verge I hold that the accident resulted from Devon’s failure to maintain or repair the highway.

The Section 58 Defence

[113]I have held that TR has satisfied all the elements listed by Steyn LJ in Mills v Barnsley.

[114]The statutory test to be applied in deciding whether Devon have made out a Section 58 Defence is one of reasonableness not practicability. The burden is on Devon to establish that they took such care as in all the circumstances was reasonably required to secure that the part of the highway to which action relates, the section of the C25 where the Land Rover’s offside wheels went into the roadside potholed area along which TR’s vehicle travelled until he drove it back onto the undamaged metalled surface, was not dangerous to traffic. I have set out above the agreed features of the relevant section of the C25. I accept the description given on behalf of Devon that it is not untypical of rural roads.

The standard of maintenance appropriate for the highway and its traffic

[115]The COP sets out non-mandatory recommendations for road maintenance carried out by highway authorities. It was not in dispute that in accordance with the COP and having regard to the classification of the stretch of the C25 between Limers Cross and Ewin’s Ash, as 3b, the recommended frequency of inspections was monthly. Devon’s Highway Safety Manual provided for category 6 roads, the equivalent of the COP 3b, to be inspected at six monthly intervals. The COP provided that where authorities elect in the light of local circumstances to adopt policies, procedures or standards which differ from those suggested in the code ‘it is essential for these to be identified, together with the reasoning for such differences’. Devon did not carry out such a study in carrying out six monthly rather than the recommended monthly maintenance inspections. On the evidence the six monthly inspections for category 6 roads was longstanding. There is no record of any consideration or review of the reason for departure from the COP. The only document produced by Mr Willmington was a note of a review in March 2004 of the new Devon Manual which recorded that their code complies with the COP recommendations for frequency of inspection ‘as traffic flows generally lower and parameters in 9.4.6’. The evidence was that Devon did not keep traffic statistics before 2011 and that traffic counts were not used for categorising roads. There was no evidence that they were used for determining frequency of inspection.

[116]Devon did not carry out a risk assessment in deciding on the frequency of maintenance inspection of category 6 roads. They seem to have proceeded on the basis that there was no need to change. There was no evidence that the reasons given by Mr Willmington for the lower than recommended frequency were even the subject of proper consideration to enable him to conclude that six monthly rather than one monthly inspections were a ‘proportionate response’.

[117]There was no criticism on behalf of TR of the categorisation by Devon of defects on the highway found on inspection or of the response to remedy such defects. Mr Willmington gave evidence that the state of the relevant stretch of the C25 was not satisfactory. If the depth of the pothole were 10cm it would have been a category 1.6 defect. Such defects are regarded as safety defects and repaired speedily. Photographs and other evidence establish that there was a long length of pothole at the edge of the metalled carriageway where it had broken away. It was there that the pothole at least 8cm deep was seen. If known about, it would have been repaired speedily being treated, in effect, as a safety defect. The defect would have been coned off and filled. A permanent repair would have been carried out within 7 days.

[118]Whilst evidence of frequency of inspection carried out by other highway authorities on the same categories of road may be of assistance in determining the frequency of inspection appropriate to the C25, it is of little or no assistance in this case. Save in the case of Kent, the evidence did not establish why in their particular circumstances the authorities had adopted six monthly frequency of inspections. Further it is to be noted that Somerset inspects the C25 on its side of the County border three monthly. This is the recommended frequency of inspection for a 4a road which was the category applied to the section of the C25 in their county.

[119]Mr Runacres was satisfied that the inspection frequency of Devon’s Category 6 roads was determined in accordance with COP principles and guidance. However no evidence was adduced to establish that departure to any or to the extent of five months from the COP recommendations was the subject of proper evidence based consideration by Devon. Mr Runacres secondly based his opinion that six monthly frequency of inspection was adequate on the evidence of other authorities referred to above. That evidence, save in one case, does not give reasons for departure from COP recommendations. Therefore it is not possible to assess whether like is being compared with like when assessing Devon’s practice against these authorities. They may have measured traffic flows and based their decisions on this and other information. Finally Mr Runacres based his opinion on the adequacy of six monthly inspections on factors which will have been taken into account into the categorisation of the C25.

[120]The justifications advanced by Mr Runacres and Mr Willmington for departing from the COP recommended frequency of inspection for roads of 3(b) or Devon’s 6 Category do not support a conclusion that six monthly maintenance inspections were appropriate for the stretch of road under consideration or generally for those in the equivalent categories to COP 3(b). Mr Luck was of the opinion that safety inspections of the C25 should have taken place at monthly intervals. This was in accordance with the COP recommendation.

[121]Devon have not established that a six monthly maintenance inspection regime for their category 6 roads, including the C25, was appropriate.

Haunching

[122]The evidence established that haunching the edges of roads abutting soft verges is a more permanent means of repairing edges than the patching used by Devon. Although no figures were given, it is apparent that haunching of rural roads such as the C25, of which there must be many in Devon, would be much more expensive than patching repairs. The Transport Research Laboratory’s 1994 Report on Road Haunches: A Guide to Maintenance Practice states that the decision whether to construct a new edge support will take into account various factors including cost.

[123]Whilst haunching the edges of the C25 may well be the best way of dealing with edge deterioration due to water ingress on rural roads and overriding, applying the dictum of Lord Hoffmann in Stovin v Wise

[1996] AC 923

at page 958D: “Given the fact that the British road network largely ante dates the highway authorities themselves, the court is not in a position to say what an appropriate standard of improvement would be. This must be a matter for the authority.” on the facts of this case it could not be said that a failure to haunch the relevant section of the C25 was a failure to maintain the highway to an appropriate standard. Devon had chosen other means of maintaining the highway. The failure in this case is in not carrying out maintenance inspections and consequential repairs at appropriate monthly intervals. Not haunching edges on the relevant stretch of road was not unreasonable. The state of repair in which a reasonable person would have expected to find the highway

[124]Mr Lockyer, the driver of the van behind TR, gave evidence that he knew the stretch of the C25 where the accident happened. He remembered that the state of the road was getting worse and worse. He had seen the rut on numerous occasions going past. On the evidence of PC Parratt and others including Mr Tucker that drivers sometimes go over the white edge line, a reasonable person would expect the are beyond the white edge line to be kept in a state of repair on which it was safe to be driven.

[125]Drivers, including TR, would try to keep within the white edge lines. TR agreed that he would take extra care going beyond the line. However taking care is different from anticipating that the edge of the road would be unsafe to drive on. Whilst it may be that drivers go onto the edge for parking on the verge, pulling over if two wide vehicles pass on a narrow part of the road or for overtaking where necessary, driving on the area on and beyond the white edge line is subject to no restrictions. A reasonable driver could expect to find that area to be kept safe for the passage of vehicles. In my judgment the state of repair of the relevant stretch of the C25 where the accident happened was well below a standard a reasonable driver could expect. 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

[126]Devon were aware that the section of the C25 where the accident happened was liable to get wet and that water was liable to undermine the edges of the highway which abutted the verges. Inspection reports of the section of the C25 showed that safety defects were recorded, both potholes and overriding, on every recorded inspection since June 2003 save for in July 2006 some weeks before the accident. The defects were in category 1: potholes and overriding damage to the edge of the carriageway, Mr Tucker agreed that a Category 1 defect was a hazard and a threat to the safety of traffic.

[127]Mr Tucker agreed that during harvest time, in August and September, particularly heavy traffic used the relevant stretch of the C25. These vehicles were liable to override the carriageway and the adjacent verges would become depressed. He was at the site on the day after the accident. The pothole seen on that day would have been repaired speedily as a Category 1 defect. It could cause danger to traffic.

[128]From the photographs and the account of the deteriorating state of the road noted by Mr Tucker, in my judgment Devon could reasonably be expected to know before the accident of the poor condition of the offside edge and verge of the highway and that they were likely to cause danger to traffic.

Warning Notices

[129]Devon had not identified the defects as in need of repair. Accordingly the question of whether they should have put out warning notices does not arise.

Causation

[130]It has been found that Devon failed to carry out maintenance inspections at the monthly frequency which was appropriate for the category of road on which the accident happened. Nonetheless, applying the dictum of Otton LJ in Rance, Devon could establish a Section 58 defence if they showed on a balance of probabilities that monthly inspections would not have detected a defect. Whilst Mr Ashplant explained that potholes can appear overnight, in my judgment it is more likely than not that the pothole of a depth of at least 8cm would have taken some time to develop. The serious damage to the edge of the roadway and the verge was likely to have been caused by overriding. On the evidence there was likely to be overriding by heavy vehicles at harvest time. It was the opinion of Mr Luck which I accept, that the condition of the road and verge (‘this situation’ referred to in paragraph 9.2 of his report) had developed at least a number of weeks before the accident.

[131]Whilst heavy emergency vehicles attending the scene of the accident would exacerbated any existing rutting, Mr Luck was of the opinion that the road was dangerous to traffic before this occurred. I accept his opinion.

[132]I find on the balance of probabilities that the failure to carry out monthly inspections with consequential repairs was causative of the accident.

Contributory Negligence

[133]Whilst drivers, including TR, would in the ordinary course of driving be expected to drive on the carriageway between the white edge lines, in my judgment by driving onto or possibly beyond the white edge line, TR did not display lack of care amounting to negligence. The entire width of the carriageway could be used. Although the area of highway beyond the white edge line was more likely to be used for the three purposes referred to in evidence: parking, avoiding a wide oncoming vehicle and overtaking a wide vehicle, in my judgment TR in driving onto or possibly beyond the white edge line did not show that he failed to take reasonable care for his own safety.

[134]Once TR’s Land Rover was in the rutted pothole area it was reasonable for him to seek to steer out of the rut. He reacted within a matter of seconds. It may be that if he had remained in the rut the car would have come out of it without the need for steering to the left. However it cannot be said that it was unreasonable for him to have done so. It is said on behalf of Devon that TR over-steered to the left and so contributed to the accident. TR was placed in the situation in which he had to respond quickly. He would not have had the opportunity to carefully weigh up the degree of steering required. His reaction by steering perhaps rather more than may have been necessary did not display a lack of reasonable care for his own safety.

[135]TR did not by careless driving fail to prevent or avoid the consequences of the breach of Devon’s duty to maintain the highway. He was not contributorily at fault for the accident.

Negligence

[136]In addition to the matters relied in the claim under HA Section 41, in support of the negligence claim TR relies on the fact that there was a white central road marking at the accident site.

[137]In my judgment there is no evidence to support the suggestion that the presence of the white centre line on the relevant stretch of the C25 caused or contributed to the accident. Whilst paragraph 4.34 of the Traffic Signs Manual recommends that where, as here, the carriageway is less than 5.5 metres in width, the centre line should be omitted, it cannot be said that TR or the driver of the car he was overtaking were affected by the presence of the centre line.

[138]The case for TR was presented principally on the basis of breach of statutory duty and I have so dealt with it.

Conclusion

[139]TR succeeds in his claim that Devon were in breach of their duty under HA Section 41 to maintain the relevant section of the C25, Devon have not made out the statutory defence under HA Section 58 and TR was not contributorily negligent.

Cited in 1 later judgment

Devon CC v TR 2013