England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OLDHAM COUNTY COURT
(Mr Recorder Lyon)

		Royal Courts of Justice Strand London WC2 Monday, 25th June 2001

Monday, 25th June 2001

1. LORD JUSTICE PETER GIBSON: I will ask Sedley LJ to give the first judgment.
2. LORD JUSTICE SEDLEY: This appeal comes before the court by permission which I granted on 9th May 2000. In a sense it comes before us with my encouragement, because legal aid had been withdrawn before the oral hearing of the application so that there was no attendance. I gave reasons, however, in open court why I would have been prepared to give permission to appeal, and, as I understand it, in reliance upon those reasons legal aid was restored and the application for permission thereafter successfully renewed.
3. This case is a tripping case. I say this in spite of the cross notice which, until this morning, was seeking to reverse the Recorder's finding to this effect and to substitute a finding that the claimant slipped rather than tripped, as the hospital notes said she had done. It would have been quite sufficient to say that histories in hospital notes are notoriously unreliable, for obvious reasons ranging from haste to misunderstanding, and that the Recorder was fully entitled to disregard an unattributed and unconfirmed history in favour of the claimant's account. However, Mr Tattersall QC (for the respondent defendant) pulled the rug from under that point by abandoning it. Secondly, the defendant respondent has sought a finding of contributory negligence if this appeal is to succeed. But the nature of the appeal, and Mr Huffer for the appellant claimant accepts this, is such that, if it succeeds, the only realistic order will be a retrial at which the defendant will, of course, be at liberty to argue contributory negligence.
4. So the issue before us is this. Is the Recorder's finding that the injury which the claimant suffered by tripping on the pavement was not the defendant's fault sustainable?
5. Mr Recorder Lyons, as he then was, heard the action in Oldham County Court on 13th December 1999, giving an extempore judgment at the conclusion of evidence and argument. The claimant had left her home at 81 Bowness Road on 1st February 1996 and had turned left. As she passed number 79 she moved towards her neighbour's privet hedge to avoid ice on the outer side of the pavement. She tripped on what the Recorder in his judgment called a "sunken pavement stone" but must strictly have been the edge of the one abutting it. The injury was particularly nasty. It turned the claimant's foot right round. Damages were agreed at £24,000.
6. Almost three months later, in the presence of her solicitor and a representative of the local authority, the claimant identified the spot and it was photographed and measured. The lip at the precise point she identified was three-quarters of an inch, but near it, possibly on another face of the very same stone facing the exit from number 79, was a sharper tripping point of one and one eighth inches. The Recorder, quite correctly, considered whether this, rather than the one that had been picked out nearby by the claimant, could have been the material hazard. Medical evidence of the likely mechanism of such an injury might have helped the Recorder to decide, for example, whether the cause was frontal tripping or the turning over of the foot on this differently aligned hazard, but there was none - for the probably good reasons that Mr Huffer has explained to us.
7. The Recorder's reason for eliminating the higher lip was not that it was not the one on which the claimant tripped -- he did not reach that point -- but that it could not be shown that it was as serious a hazard on 1st February as it turned out to be on 25th April. Mrs Pannet, the claimant's neighbour, gave evidence, which the Recorder manifestly accepted, that tree roots, among other things, had caused the pavement to become worse over a period of years.

"It follows", said the Recorder, "that one cannot be satisfied as to what the actual measurement was at or about the time of the relevant accident. There is simply no evidence on the point."

8. Strictly speaking, that was not right. There was evidence, some of which I have mentioned and some of which I will come to, from which it was both possible and necessary to decide whether a hazard sufficient to attract liability was on the balance of probabilities present on 1st February. If it was, it would then have been necessary to decide whether the claimant had tripped on it and, if she had, whether the defendant had nevertheless taken all due care to obviate it.
9. The Recorder went on to say this: (page 1 7 3)

"The only evidence is, as it were, negative evidence that comes from Mr Mooney. Mr Mooney is a council employee whose task it is to go out and check upon the condition of pavements and roads in the relevant area. He, some 16 days before the accident, had been up and down this road and had noted a substantial number of defects that required remedial work. ... He noted a substantial number and measured those tripping points and defects.

He worked to the council rule of thumb which is that a tripping point in excess of one inch has to be dealt with. I am satisfied that he may have seen this particular defect. I am satisfied if he had seen it he would have measured it and I am satisfied that when he measured it, it would not have been above an inch because if it had been he would have taken steps to have it repaired.

In those circumstances I cannot be satisfied on the balance of probabilities that there was a serious defect present at time of the accident."

10. This important passage is phrased in a way which troubled me at the time when I first read it and, in spite of Mr Tattersall's defence of it today, still does. It falls short in terms of a finding that Mr Mooney saw the defect or that he measured it. By itself therefore it could not sustain the inference that he must have found the particular lip to be less than one inch high. Yet that is the very inference which is drawn from it, and from that inference flows the primary negation of liability by the Recorder.
11. If his judgment ended there, I would have been in favour of sending the case back for re-hearing. But the Recorder goes on in the remainder of the judgment to deal with the statutory defence afforded by section 58(1) of the Highways Act 1980, and it is Mr Tattersall's submission that this passage cures any earlier doubts or deficiencies.
12. The Recorder summarised the section as requiring proof that the local authority operates a reasonable inspection system. This is nearly, but not quite, what the section says. It says that it will be 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."

13. It appears to be common ground, no doubt on authority, that traffic here includes both vehicles and pedestrians. Having concluded on well-known authority that working to a tolerance of one inch was reasonable, the Recorder found that the local authority's system had been properly operated and so implicitly that all reasonably required care had been taken. His reason was that:

"I have indicated that I have heard from Mr Mooney. I have indicated that I accept his evidence that had there been a defect at that point in excess of one inch he would have noted it and he would have taken action upon it."

14. This passage, it is true, is open to two alternative further criticisms. One is that the Recorder had not so indicated. His attitude to Mr Mooney's evidence on the previous page had been much more equivocally expressed. But, if one accepts the earlier finding as a finding in Mr Mooney's favour, then the point is taken by Mr Huffer that it is arrived at, as it is again on the final page, without any overt consideration of the evidence which pointed the other way.
15. This countervailing evidence was in part, of course, the claimant's own testimony but, importantly, it was also that of her neighbour, Mrs Pannet. In evidence Mrs Pannet adopted her witness statement, which said this:

"... approximately nine and a half years ago there was a major defect outside my property when a water main burst. The pavement was dug up. The amount of the pavement, from recollection, was three to four paving stones in length. The burst water pipe was repaired but the paving was not replaced adequately.

Whilst the paving stones were put back, they soon sank into the ground leaving some of the paving stones raised. There is a large tree directly outside my front door and this may contribute to the poor state of the paved area around it.

The area has been defective for many years. After LISA TAYLOR fell a couple of months later the Local Authority came to repair the paving though again it is now just as bad as it was then."

16. In her evidence in chief Mrs Pannet said that the pavement had been in the state shown in the April 1996 photographs for some years. In cross-examination, however, she said that it had been sinking gradually throughout that time. The dialogue went:

"Q.Do you say that the Council have done anything about this then, over the years?

A.No. All that's been done, a couple of weeks after Lisa had her accident - I don't know when - some men come. They put a bit of tarmac just near my gate and that was it. They said all that time it was only temporary. They were supposed to come back and re-pave it. They never came."

17. Then a little later:

"Q.When you talk about being defective, what are to you talking about? What particular condition are you talking about?

A.It's just in bad condition. It's all up and down. If it rains you've got to practically swim when you go out of the house. It is a mess. It's just all up and down. The pavement's not level, any of it. There's all pavements up and everything. It's not only there now. It's all over now."

18. This evidence clearly formed a significant part of the claimant's case. The defendant's job request form, dated the same day in April as the post-accident inspection, confirms that a one and one eighth inch hazard was present. The question therefore is whether Mrs Pannet's evidence of long-term deterioration was enough to justify an inference that less than three months earlier the hazard which by late April required attention had been within relatively safe limits. If it were not so, it would follow that Mr Mooney had not done his job adequately and that the statutory defence failed.
19. Mr Huffer has submitted to us today that all this is necessarily speculative because the evidence has not been sufficiently considered to enable the facts to be satisfactorily found. Of course the evidence, on any view, leaves many unknowns, but that, it is submitted, is exactly why the Recorder, making bricks as judges often have to do with very little straw, needed to base his conclusions on a full consideration of such evidence as there was, as the judgment illustrates. For the claimant, Mr Huffer says one is entitled to feel, reading the judgment, that it was enough for the local authority to come to court and say "Well, we inspect the pavement periodically and we fix any serious defects, so it follows there can have been none when Miss Taylor had her accident." Of course, the fact of her accident does not by itself prove neglect, but it has a bearing. If the place where she tripped was on the balance of probabilities in a dangerous state, then the periodical inspection may have been insufficient, and it will have been the task of the judge at first instance to say whether it was.
20. Mr Tattersall QC, however, points to the earlier passage quoted in which the judge had considered the evidence about the higher lip. Mr Mooney's most recent inspection had taken place in mid-January so that, if there was a hazard on 1st February, it was then that he had failed to spot it. In April it was undoubtedly there.
21. On what was therefore the crucial question, the judge had said this 172:

"The question, however, arises as to whether or not that tripping point of one and one eighth inches existed at the time of this accident. That there was a defect in this paving stone I am satisfied; that it was at least in one part of the area one and one eighth inches deep I cannot be satisfied. This paving stone had moved over a period of years and had got worse, such is the evidence of the lady who lives at No 79, a Mrs Pannet, who gave evidence before me. Apparently movement was occasioned by some tree roots in the area."

22. So far so good, but it is here that he goes on to say:

"It follows that one cannot be satisfied as to what the actual measurement was at or about the time of the relevant accident. There is simply no evidence on the point."

23. Properly analysed, it seems to me that there was evidence but that it was evidence from which the Recorder had to be invited to infer that the state of the pavement in April represented its state in February. This he declined to do. That, it seems to me, is ultimately the critical factor in the case. Although it is understandable that an extempore judgment given at the end of a day's hearing is not as perfect as it would have been had the Recorder reserved his judgment and given it after preparing it in writing, I am persuaded in the end by Mr Tattersall that his findings add up to the following:

1) Mr Mooney's evidence that he would have spotted a trip of more than an inch on his inspection shortly before the accident was, on the face of it, convincing to the Recorder.

2) It could, of course, be negatived by evidence that there was in truth a trip of more than in inch close enough to where the claimant fell to implicate it, on the balance of probabilities, in her accident.

3) If so, it would mean that Mr Mooney had missed it and that the statutory defence failed.

4) The agreed evidence was that by late April there was a lip of one and one eighth inches, but Mrs Pannet's evidence, while confirming that this was a long-standing problem, also indicated that it was part of a process of gradual deterioration.

5) In the Recorder's judgment this made it at least possible that on 1st February the hazard had not been as bad as it was in late April.

24. In that situation the Recorder declined to find on the balance of probabilities that on 1st February there had been a tripping point of such severity that Mr Mooney should have spotted it but must have missed it. On the evidence that there was, the Recorder was unable to find for the claimant on the critical issue of whether an unacceptable hazard was present. Had he so found, he would have had to go on to consider whether it was this hazard which had caused the claimant's accident. In the event it did not arise, and I am persuaded that the reasons for which the Recorder found that it did not arise are adequately expressed in his judgement, though not perhaps in an ideal order.
25. For those reasons I would for my part dismiss this appeal. In doing so I would express a personal regret that by granting her permission to appeal when a perhaps less sanguine view had been taken by her own solicitors I may have raised the claimants hopes only now to dash them; but I am afraid that is the outcome.
26. MR JUSTICE ASTILL: I agree and have nothing to add.
27. LORD JUSTICE PETER GIBSON: It is impossible not to feel sympathy for the claimant, suffering, as she did, an injury of such severity as a result of tripping on an uneven pavement maintained by the respondent Council. But, for the reasons given by my Lord, I too have reached the clear conclusion that this is not a case where it would be proper to interfere with the factual conclusion reached by the trial judge. There was plainly evidence in support of the judge's conclusion that the trip over which the claimant tripped had not been shown to be of over an inch in depth so as constituting a hazard for which the respondent could be held liable in law.
28. That evidence was from Mr Mooney, whose job it was, as a highway inspector, to inspect pavements and roads, looking for unevenness of a depth greater than one inch and whose records of his most recent inspection on 19th January 1996 (just twelve days before the accident) showed that he had noted a number of defects in the road in question but not at the place where the accident occurred. Mr Mooney's evidence was unequivocal. Thus he was adamant that he did inspect the pavement so that he knew what the position was. He said of the trip:

"If that would have been there when I did my inspection I would have took a measure there, and I would have saw the back edge was more than an inch and I would have repaired it anyway. That being there on the inspection would have been measured and rectified."

29. And again:

"I would have noted a defect like that if it was there when I was doing my inspection."

30. He was asked whether he accepted that he was fallible. His response was:

"We're all fallible, but I don't think I'd miss that, no."

31. The judge had the opportunity to form his own assessment of Mr Mooney as a witness.
32. What was there which could be set against that evidence? Mr Huffer (for the claimant) has said that the judge did not take into account the possibility that Mr Mooney had overlooked a level of irregularity in the pavement exceeding one inch. The judge was bound to have considered that point when reaching his conclusion. Other aspects of the evidence to which Mr Huffer referred included the photograph that was taken by the claimant's solicitor on 29th February 1996 (four weeks after the accident). But the solicitor never gave evidence in person and never took any measurements of the depth of the irregularity that can be seen in the photograph. It is impossible to draw any inference, such as Mr Huffer suggested should be drawn, that we should assume that the solicitor was experienced and would know that it was only an irregularity of more than one inch which should excite his interest and that the relevant hazard did exist on 29th February. We know nothing of the solicitor's experience.
33. Further, although Mr Huffer suggested that the judge overlooked Mrs Pannet's evidence, it is apparent from the judgment that it was not overlooked by the judge. It is plain that he accepted the evidence so far as it went, but it was not specific in any way. She referred to problems with the pavement outside her house having existed for some 11 years. She took no measurements herself and she never complained to the Council. The records of the Council do not show any report of there being a relevant defect at the point where the accident occurred prior to the accident in question.
34. It seems to me that the judge plainly had material on which he could reach the conclusion which he did. In those circumstances it is not for this court to substitute a different factual conclusion.
35. For these reasons, as well as those given by my Lord, I too would dismiss this appeal.
Order: Appeal dismissed. Section 11 order in relation to the Respondent's costs. Appellant's costs to be assessed in accordance with the Community Legal Services Costs Regulations 2000. (Order does not form part of approved judgment)