England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(HIS HONOUR GRAHAM JONES)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th July 2008

Lord Justice Laws:

1. This is an appeal, with permission granted by Waller LJ on 9 April 2008, against a judgment of HHJ Graham Jones given in the Cardiff County Court on 17 January 2008 when he dismissed the appellant's claim for damages for personal injuries against the local highway authority. The appellant alleged a breach by the authority of its duty to maintain the highway imposed by section 41 of the Highways Act 1980. There were in fact two defendants, for the appellant also sued his employers, the South Wales Fire Authority, but the claim against them was discontinued at the end of the evidence and the judge was to state (paragraph 3 of his judgment) that he was:

"entirely satisfied that there was no breach of duty of any kind on the part of the Fire Service."

2. The appellant was born on 22 December 1977. He was employed as a fireman by, as I have said, the South Wales Fire Authority. During the hours of darkness on 27 February 2003 he and colleagues were called out to a fire which had been set on a riverside footpath running beneath a bridge at Cwmbach near Aberdare. The footpath where it ran beneath the bridge was unlit. Some yellow light percolated from the street lights above. The path ran between the support wall of the bridge and another wall, beyond which was a river. A wooden pallet which was leaning against the bridge support wall was on fire. The appellant climbed down to the footpath. Shining his torch or hand-lamp ahead he went towards the burning pallet. It was not much of a fire, and it was plain he needed no more than a bucket of water to put it out. He pulled the pallet away from the bridge wall, intending to pour the bucket of water over it. As he did so his left foot went into a depressed and eroded area in the ground and he injured his left ankle. The fire, which was feeble, went out when the pallet was pulled from the wall. The water bucket was not needed.
3. The photographs show that along its length the made-up footpath has a broken edge at the side distant from the brick wall. The broken edge is irregular; it is not in a straight line. The made-up section is, however, on the judge's finding, 1.2 metres wide at its narrowest point. At the other side of the edge the ground is depressed and eroded; the depression had originally been occasioned by the construction of a drainage channel to contain flood from the river.
4. The judge made findings as to the use of the footpath in paragraph 5 of his judgment. They may be summarised as follows. The path used to lead to a footbridge but that had been closed years before. At the time of the accident the path in effect led nowhere. It terminated a little distance beyond the point where the accident happened where it met a fenced-off area of private land marked clearly with "Keep Out" notices. The evidence was that the path was very little used indeed; children occasionally went there to fish in the river. What were described as 'amateur arsonists' also went there occasionally. It is not a pleasant riverside walk. The ordinary traffic using the path was very limited indeed. There was very little purpose in anyone going on to it. In fact, said the judge, it had lost its purpose.
5. At paragraph 12 the judge found there was no evidence of its use at night, though the appellant by Mr Keyser QC quarrels with that; he submitted in his skeleton that fires had been lit at night at that location before and the Fire Service had had to attend. In his oral submissions this morning he put the matter a little less starkly: he submitted for example that walkers and children lighting fires are at least likely to have gone there in the evening time.
6. After some procedural toing and froing -- the case had originally been fixed for hearing in the fast-track on 21 August 2007 but was adjourned and ordered to proceed on the multi-track -- the claim was finally fixed to be heard commencing on 16 January 2008. The day before, the highway authority accepted for the first time that the footpath was a highway maintainable at the public expense so that section 41 of the 1980 Act applied. Section 41 provides, so far as material:

"(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty…to maintain the highway."

Maintenance includes repair: see section 329(1). Section 58(1) provides:

"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… 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 to traffic."

And then by subsection (2) various matters are set out to which the court shall have regard.

7. In the course of the proceedings the highway authority disclosed a structures inspection report dated 21 January 2000, three years before the accident. The document was in two columns. In the first column this appeared:

"Large scour hole formed in backfill between footpath bridge and river retaining wall [I interpolate there followed a word which the judge though meant creates or created] a 0.6 metre drop for pedestrians."

Then in the right hand column this:

"Inspector. Advise ROW [that is, as I understand it, Rights of Way Officer] of large scour hole formed in backfill between footpath under bridge and river retaining wall. Scour hole creates a 0.6 metre drop for pedestrians and reinstate backfill."

There is another structures inspection report postdating the accident. I need not read it out.

8. There was no evidence of any reinstatement or any other work of maintenance or repair having been carried out between the January 2000 report and the date of the accident. The judge found (paragraph 10) that the footpath which constituted the highway maintainable at the public expense was what he called "the made-up section". However he accepted, referring to Nicholson v The Southern Railway Company  [1935] KB 558, that there may be liability under section 41 in the event that a person slips off the edge of a highway: see judgment, paragraph 11. The judge proceeded to find "not without some considerable hesitation" that there was a breach of section 41: see paragraph 12. He also held however (paragraph 18) that the authority had established a defence under section 58. Because of the minimal use of the path the authority had taken such care as was reasonably required to secure the safety of the relevant part of the footpath even though what they had done in fact was nothing. And so the claim was dismissed. The judge found that had he been in the claimant's favour on primary liability he would have assessed contributory negligence at 75%: see paragraph 21.
9. Mr Keyser advanced three grounds of appeal: one, the judge should have rejected the section 58 defence; two, he should have found that the defendant highway authority had in any event been negligent; and three, his assessment of contributory negligence at 75% was too high. Mr Lewis QC for the respondent authority has put in a Respondent's Notice, asserting that on the primary facts found by him the judge should have held that there was no breach of section 41.
10. This as it seems to me is at the core of the case, and at an early stage in the hearing this morning we invited Mr Lewis to address us on the Respondent's Notice.
11. Section 41 has been said to impose an absolute duty, but the term "absolute" in my opinion has with respect to be treated with care. There is a risk of it suggesting that the duty is to maintain the highway to such a standard as in effect to guarantee the safety of its users, and it is plain that that is by no means the measure of the duty; it is absolute only in the sense that it is not merely a duty to take reasonable care but to maintain the highway to an objective standard. The statute does not state what the standard is. The authorities, however, are as it seems to me clear as to the nature of this standard. 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. See Griffiths v Liverpool Corporation [1967] QB 376 at 389 F-G, Goodes v East Sussex County Council [2000] 1 WLR 1356 at 1361 F-H. Compare Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291 at 293. And Mr Lewis QC this morning has referred also to Cenet v Wirral Metropolitan Borough Council [2008] EWHC 1407 at paragraph 27 where, citing Rider v Rider [1993] 1 QB 505 at 514, Swift J stated that the highway must be "'free of danger to all users who use the highway in a way normally expected of them'".
12. Foreseeability of harm will not of itself entail the conclusion that the highway is unsafe. As Lloyd LJ said in James v Preseli Pembrokeshire District Council [1993] PIQR 114 at 119:

"In one sense it is reasonably foreseeable that any defect in the highway, however slight, may cause an injury but that is not the test of what is meant by dangerous in this context. It must be the sort of danger which an authority may reasonably be expected to guard against."

13. This is, with respect, as it seems to me consonant with the other learning. The judge found a breach of section 41 because he considered that a person walking along the riverside edge of the footpath whose attention was diverted would be at risk because of the erosion at the point where the claimant fell, and additionally there is a change in the level of the depressed area: see paragraph 12 of the judgment. However he also found that the footpath itself --- that is the metalled or made-up section -- was "in obvious reasonable repair" (paragraph 16). The erosion at the edge was "perfectly obvious to anyone walking along the footpath" (paragraph 12). And the same would be true at night-time for anyone carrying a light and keeping a lookout:

"…though the footpath is significantly eroded on one side there is still certainly a reasonable and even a generous amount of room for pedestrians to pass and re-pass."(paragraph 12)

Then reverting to paragraph 16:

"…the state of repair is not such where it could be said that a reasonable person would find this to be an unsatisfactory state of repair."

And the judge repeated this:

"…as I have said the remaining considerable width of the footpath can be used in perfect safety and the defect in the footpath is obvious to anyone taking care appropriate to use of this path."

14. These findings, collected at paragraph 16 of the judgment, were made in the context of the judge's consideration of the section 58 defence, but as it seems to me they are in fact findings which, when taken together, are to the effect that the state of the footpath was such that it did not reasonably need to be repaired at all. That finding, if soundly based on the evidence, entails the conclusion that there is no breach of section 41 in the first place. This is the position for which Mr Lewis QC contends. He has placed some emphasis this morning not only on the findings made by the judge, which I have recited, but for example on the fact that there have been no complaints from members of the public nor from members of the fire service previously called to this very spot; no record of any accidents. The state of the path was by no means in the nature of a trap. Some of these features are akin to the facts in Swift J's case, Cenet, to which I have already referred: see paragraph 44 of the judgment to which Mr Lewis took us in the course of his submissions.
15. The judge noted the minimal use of the path, the good state of repair of the made-up area, its ample width for passing and repassing, and the fact that the erosion on the river side of the path was perfectly obvious. Given all those factors and the others to which I have referred he was in my judgment entitled to find as he did that no works of repair were reasonably required. That is so, as it seems to me, despite what is undoubtedly a considerable drop at the point where the erosion is to be seen in the pictures. Indeed as I have said the structural report referred to a drop of 0.6 metres. However the judge's finding as it seems to me was justified and concludes the section 41 issue against the appellant. In finding a breach of section 41 I apprehend that the judge may have applied a test of bare foreseeability of injury. If so, he thereby fell into error. It is of note to see what the judge said when refusing permission to appeal. Mr Lewis drew our attention to this passage from his reasons:

"The degree of danger was very low and potentially affecting only users walking at the side of a wide way. The scoured area was in the side of the path, visible and very easily avoided by a person taking the care for his safety appropriate in the circumstances. The considerably greater width of the path in comparison with the scoured area was easily and readily passable without danger of any kind. Use as a highway had for practical purposes ceased when the footbridge to which the footpath formerly led was closed some years before the accident so that the path at the time and now leads nowhere, coming to a dead end shortly beyond the area in question. Traffic, pedestrian only, was extremely limited. The Authority has limited resources for maintenance generally, the application of which it has to prioritise. In all the circumstances, a reasonable person would not have expected to find this footpath in a state of repair different from that existing at the time of the accident. The standard of maintenance was appropriate. To hold the Authority liable in this case would be to impose too high a standard of care and an excessive burden upon it."

That casts a considerable amount of light on the judge's approach to the case. I would add a qualification. His reference to resources, while potentially apt in consideration of a question under section 58, is not necessarily something that ought to be considered for the purposes of deciding whether there was a violation of section 41. However it is not in the circumstances necessary to say any more about that.

16. I should add this. I do not consider that a finding here that there was no breach of section 41 in some way conflates the test or tests for section 41 and those for the section 58 defence. There is, on the authorities to which I have referred, no breach of section 41 if the highway is reasonably passable for ordinary traffic without danger. If that test is not met, then there will be a breach; but the local authority may show that they have taken reasonable care to avoid the danger, albeit on the particular facts they have not succeeded in doing so. The two sections both require regard to be had to the circumstances of the case but there is no reason for conflation between the two. For section 41 the circumstances of the case are relevant to the ascertainment of a standard of repair that is required for section 58. They are relevant to an assessment of what a reasonable highway authority should put into effect by way of maintenance and repair.
17. For all those reasons then I would accede to the submissions made by Mr Lewis in support of the Respondent's Notice.
18. Mr Keyser's second ground as I indicated earlier was that the authority should be held liable in negligence in common law. He says that this claim arises because the erosion which was originally caused by works of excavation done in or about 1988 by the highway authority's predecessor, and it is said that because the highway authority knew that fires were lit at this spot, that there was annual flooding and that there was a scour hole of the dimensions to which I have referred, they could not properly sit on their hands and do nothing. There is, with respect to Mr Keyser, nothing in this. Plainly, had he succeeded under section 41 he would have had no need to have recourse to the law of negligence. As in my judgment he should not succeed for the purposes of section 41, it seems to me that any separate negligence claim must rest on the premise that the common law would require the highway authority to maintain this highway at a higher standard than is required by the statute. I know of no authority that vouchsafes such a position and for my part I would not accept it.
19. In all of those circumstances I would dismiss the appeal, for reasons I have given, which differ from those of the learned judge below. If my Lords agree, it is not in the circumstances necessary to enter into the question whether the judge's finding as to contributory negligence can properly be faulted in this court.

Lord Justice Longmore:

20. I do agree with what my Lord has said.

Lord Justice Richards:

21. I also agree.

Order: Appeal dismissed