England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(HIS HONOUR JUDGE MITHANI)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th January 2008

Lord Justice Ward:

1. On 7 August 2005 Mrs Carol Harrison was walking along the pavement on Stockbrook Street in Derby when she tripped in a pothole, probably caused by the subsidence of a cellar void beneath the footway. This accident was not Mrs Harrison's fault.
2. The sole issue before HHJ Mithani, sitting in the Nottingham County Court on her claim for damages, was whether the defendant city council had established the statutory defence pursuant to Section 58 of the Highways Act 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."

"Traffic" in this context including pedestrians.

3. The judge held that the county council had failed to discharge that burden and so on 10 July 2007 he entered judgment for the plaintiff in the agreed sum of £25,000. The council renews its application for permission to appeal, permission having been refused by Gage LJ.
4. In this case, the pavements were inspected every six months. This particular pothole was not there when it was inspected three months earlier. It was described by the inspector as possibly having occurred quite quickly. It could perhaps be said that if the pothole could appear as quickly as that, then too many will have become present within a six-monthly period to suggest that that frequency of inspection is adequate.
5. I was much of the mind of Gage LJ, when he refused permission on paper. But, on further reflection, I am persuaded to grant permission to appeal. The judge was much influenced by the fact that no risk assessment had been carried out at all and he seems to have been led to the conclusion from that that there was a failure to maintain. But a risk assessment still has to be conducted in a case of this kind, if only by the judge. The evidence was that there were some 800 potholes found, but only an extra five occurring over cellar voids. The evidence was that a third to a quarter of the properties in Derby were old Victorian properties, which had the coal cellar beneath the pavement.
6. Mr Haque's point is that five potholes over cellar voids does not indicate any particular susceptibility of the cellars to collapse so as to call for a greater frequency of inspection of those streets in Derby where they are likely to be found, as against the remainder of the streets of Derby. In this case it was apparently conceded, as recorded in paragraph 14 of the judgment, that where there are no difficulties associated with collapsing cellars the footway would only require biannual inspection.
7. The argument advanced to us, which merits consideration by the court, is therefore, is the incidence of collapsed cellars de minimis in comparison with the general statistics? I am persuaded that we should give permission to argue this appeal. I do so reluctantly. It is not a large claim. It does not seem to me that there is any great point of principle. It may be highly fact-specific and the costs of the appeal are as usual likely to exceed the amount in dispute. It would consequently, in my view, be highly desirable that some thought be given to the mediation of this dispute and its possible compromise.

Lord Justice Moore-Bick:

I agree.

Order: Application granted.