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
		21st April 2008

Sir Anthony Clarke MR:

Introduction

1. On 7 August 2005 Carol Harrison was walking along the pavement in Stockbrook Street in Derby when she put her foot in a depression or pothole which was more than an inch in depth. She tripped, fell on her wrist and damaged her knee. The accident occurred outside 330 Stockbrook Street. She claimed damages against the Derby City Council ("the council") as the relevant highway authority. Although the council denied liability, it accepted the claimant's account of what happened. It further accepted that the claimant was not at fault. The quantum of the claim was agreed in the sum of £25,000, inclusive of interest. The trial of the action came before HHJ Mithani, who held that the council was liable, and accordingly, on 10 July 2007, gave judgment for the claimant in the sum of £25,000 together with costs. The judge refused permission to appeal. The council applied to this court for permission to appeal. Its application was refused on paper by Gage LJ but was subsequently granted by Ward LJ and Moore-Bick LJ after an oral hearing.

The Law

2. The relevant legal principles are not in dispute. By section 41(1) of the Highways Act 1980 ("the 1980 Act"), subject to section 41(2) and (4), the council was under a duty to maintain the highway -- subsections (2) and (4) are not relevant here. The council conceded before the judge 1) that the place where the accident occurred was a part of the highway; (2) that the defect in the highway referred to above was dangerous to pedestrians, in the sense that a pedestrian might trip and fall, sustaining injury; (3) that the dangerous condition of the highway was caused by its failure to maintain or repair it; and (4) unless it can establish the defence identified in section 58 of the 1980 Act it was in breach of duty and liable to the claimant.
3. Section 58 provides:

"(1)  In an action against the 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 to 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;

"(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 relations was likely to cause danger to users of the highway;

"(e) where the highway authority could not reasonably have been expected to repair 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 these instructions."

Section 58(3) and (4) are not relevant. By section 329 traffic includes pedestrian traffic.

4. The issue before the judge was whether the council had proved that it had taken such care as in all the circumstances was reasonably required to secure that the pavement on which the claimant was walking was not dangerous for her to walk on.

The Inspections

5. The footway was inspected every six months. The last time it was inspected before the accident was on 9 May 2005, which was almost exactly three months before the claimant fell, when it was inspected by Mr Martin Vasco, who had been an inspector of roads for some 18 years. The inspection before that had been on 6 October 2004. Each inspection involved Mr Vasco walking down both sides of the road. On each inspection Mr Vasco filled in a document called a Walked Safety Record Inspection Record, known as a WSIR. The WSIR for 6 October 2004 shows that he observed seven defects, known as "actionable defects" in Stockbrook. An actionable defect is a defect which is more than about 25mm in depth. I think 25mm is about an inch. None of the defects was outside no. 330 Stockbrook Street, although one of them was outside no. 344. On 9 May 2005 Mr Vasco noted seven footway defects and two carriageway defects. He did not notice or note any defect to the footway outside no. 344.

The Facts

6. The pavement or footway in Stockbrook Street is very narrow, only about six feet in width. The properties in the street front directly onto this street with cellars under the pavement. Some of the cellars have been filled in, but many have not. The cellars have metal access covers over them. On occasion, where there are voids under the pavement, the cellar could drop, allowing the pavement or footway to drop, in turn causing a defect of the kind on which the claimant tripped.

The Claimant's Case and the Judgment

7. It was not suggested to Mr Vasco in cross-examination, or to the judge in argument, that Mr Vasco was at fault in failing to notice an existing defect. The claimant's case was not based upon such a failure, but on the inadequacies of the council's system. It was further accepted on the claimant's behalf that it was reasonable for the council to inspect footways, like that in Stockbrook  Street, twice a year, where the footways were not over cellar voids. However, Mr Buckley submitted before the judge, and the judge held, that more frequent inspections should have been carried out because of the risk of footway collapse as a result of the movement of the cellar walls underneath in cases where the footway was over the cellars. The judge held that, being aware of the risk, the council should have carried out a risk assessment, which it did not, and/or that it should have carried out inspections at one or two month intervals, with the consequence that its inspector would have discovered the defect which caused the claimant to trip. The defect would have been repaired and the claimant would not have been injured.
8. No expert evidence was put before the judge, although Mr Vasco gave oral evidence, as did Mr David Walker, who is a senior highway inspector and who inspected the location of the accident after the event and took two photographs. He measured the defect as 38mm deep. He ordered its repair, because the system was to repair defects which were more than 25mm deep. No one has suggested that that system was inappropriate.
9. The only issue before the judge and before us is whether the inspections should have been more frequent. It has also been suggested to us that they should have been more thorough. A  code of practice was put before the judge. It is entitled "Well Maintained Highways Code of Practice for Highway Maintenance Management", issued by the Road Liaison Group of the UK Roads Board. I shall refer to the code as containing guidelines. The version put before the judge is dated July 2005, but no one suggested that the principles set out in it were not appropriate in respect of the period before that, when the relevant inspections were carried out. In paragraph 8.9 it sets out a "footway hierarchy", with five categories of footway. The accident occurred on a footway in category 3, which is called "link footways", which are described as "linking local access footways through urban areas and busy rural footways". It was not suggested that the footway itself was placed in the wrong category. However, paragraph 8.9.2 is in these terms:

"The assignment of a footway to a particular category within the above hierarchy is a matter for local discretion. However, the following issues should be taken into account:

Pedestrian volume

Usage and proposed usage

Accident and other risk assessment

Age and type of footway (e.g., old flagged footways may require more frequent inspection than newly laid)

Character and traffic use of adjoining carriageways."

10. I will return to this paragraph in a moment. The judge set out part of Mr Vasco's evidence in his judgment. In particular, he noted the evidence that the defects shown in the photographs could have occurred very quickly. The nature of the defect or depression has been variously described. There was a rut along the external edge of the curb which is about twenty-eight inches long and three inches wide. It is variously described as one and three eighths of an inch (ie 30mm) and 38mm deep. There is also a depression about 18 inches long and 18 inches wide, which is about one inch or 25mm deep. It is not clear which feature caused the claimant to trip, but it was accepted on behalf of the council that, whichever it was, it required repair. The issues at the trial were in some respects not specifically foreshadowed in the pleadings. I do not blame anyone for this, but if they had been more specific the statement evidence would probably have addressed the issues more fully. In the amended particulars of claim, the claimant naturally focused on section 41 of the 1980 Act. She did not allege a failure on the part of the council to carry out a risk assessment, simply alleging, amongst other things, a failure "to take any or any adequate measure by inspection, maintenance or repair to ensure that the said area of pavement did not remain broken and/or sunken and/or uneven."
11. It is not surprising that the claimant did not give further particulars, because the burden of proof under section 58 is, of course, on the council. In its defence the council merely alleged that it:

"…took such care as was reasonable, within the meaning of Section 58 … to maintain Stockbrook Street, Derby, so that it was not dangerous i.e. the highway was inspected on a six monthly basis and when the highway was inspected on 9 May 2005 no defect as described by the Claimant was found. Accordingly, the alleged defect must have occurred between inspections."

12. The claimant did not allege a failure to carry out a risk assessment in a reply, but relied upon the implied joinder of issue. In this state of the pleadings the council only called Mr Vasco and Mr Walker to give evidence. At the trial the thrust of the claimant's case was, and remains, that footways above cellars present a particular danger because of the risk that they will "collapse", causing potholes or depressions or worse in the footway above. It was submitted that, because of the potential risks, the council should have carried out a risk assessment in order to assess the nature and extent of the risk, and in order to determine the appropriate frequencies of inspections. I should say a word about what is meant by "collapse". In the course of his submissions this morning, Mr Buckley suggested that a cellar might collapse, such as to have a catastrophic effect on the footway, and that the council should have carried out a risk assessment to identify the nature and extent of the risk of such an event occurring. I do not, however, think that that was what was meant by Mr Vasco when he referred to the risk of collapse in his statement of evidence.
13. The judge quoted extracts from paragraphs 12 and 14 of his evidence as follows:

"12.  The properties have cellars, as indicated by the metal access covers. Beneath the footway is a cellar void, many of which have not been filled in. It is quite possible that the underground wall could have dropped, allowing the above to drop, and create the defect …

14.  As I am aware that the cellar voids can cause problems with the footway above, I will specifically look at the cellar grates during my inspections, to ensure that there has been no collapse, such as is shown in the photographs."

14. It is, to my mind, clear that, when he referred to collapse, Mr Vasco was not talking about some catastrophic event, but "collapse such as shown in the photographs". As already indicated, the photographs show a rut of 38mm and a depression of 25mm. In the course of the argument Laws LJ drew attention to this exchange, between Mr Buckley and Mr Vasco in cross-examination at page 29, A to C:

"Q:  So we are talking about a small number of potential cellar collapses. A cellar collapse is something that is potentially quite dangerous, isn't it, because it results in either a hole or a significant pothole appearing in the pavement, doesn't it?

A:  Not necessarily. You could … it could be on a sliding scale on a very small pit to something bigger, but generally what happens with cellar grates, because they're so old and so compacted, when … when they do give way, they're not going to give massively. It is not like a sewer in the carriageway where you get big weights on them and lorries and things. It's something in the footway that's been there for a while and it … but it's … it's fairly compact and it has light … comparatively light weights on it, so when it does go, it doesn't [pronounced] whoof. It's got like a little tuck, what I call a tuck, and generally that's what happens."

A few questions later this further exchange occurred at 29H:

"Q:  Now, it's foreseeable, isn't it, that these grates and these cellars can result in collapse? That is something that does from time to time happen?

A:  Rarely."

15. So Mr Vasco's evidence was that the "collapse" in cellars, causing the kind of defect we are concerned with here, occurred rarely. He had explained what he meant by rarely a little earlier. He said at page 28 that there were no more than a handful a year, and put it at "less than ten, maybe around five or less, when the cellar actually collapses itself". This was to be compared with a figure of 4,000 actionable potholes he observed in six months. Assuming that evidence to be accepted, defects of the kind which occurred here were indeed a rare occurrence, given Mr Vasco's evidence that a quarter to a third of the houses in Derby were Victorian with cellar grates. In the course of his submissions, Mr Buckley expressed some scepticism as to reliability of Mr Vasco's figures. But I do not see any grounds for scepticism. Mr Vasco was an experienced inspector who regularly walked half of Derby's streets. The figures were not precise, but they show that, by comparison with other potholes, cellar-related potholes were a very small problem indeed. I return to the judgment.
16. After setting out paragraphs 12 and 14 of Mr Vasco's statement, the judge said this at paragraphs 11 and 12:

"11. I found the evidence that Mr Vasco gave in relation to that unsatisfactory. He says that he looks at cellar grates during his inspections to ensure that there have been no collapses. However, as had been rightly pointed out on behalf of the claimant, there appears to be no evidence, certainly from the documents included in the bundle relating to May 2005 and the previous October 2004 inspection, to suggest that this was routinely done. It is possible, of course, that Mr Vasco did not observe any difficulties with the collapses during those inspections. However, no documentation has been included in the bundle to demonstrate that this was in the forefront of Mr Vasco's mind at the time when he carried out his inspections. I would have liked to have seen documentation dealing with this assertion in more detail. In the absence of such documentation, it is very difficult to know what importance this aspect was given in the inspections that were carried out by the defendant's inspectors.

12.  The claimant does not dispute the substance of Mr Vasco's evidence. However, she says that two matters arise from it. First, she says that, whereas in the present case the defendant was on notice that there were a number of potholes and depressions caused by collapsing cellars in the areas that formed the subject matter of its inspections, it should have been more vigilant in carrying out those inspections. It should have given more detailed attention to the matter; it should have looked not just for ordinary defects but specific defects that might have arisen as a result of collapsed cellars."

17. The judge then proceeded to consider the second point, namely that the council should have carried out inspections more frequently than twice a year. I am bound to say that I do not think that the paragraphs which I have just quoted are fair to Mr Vasco or the council. Mr Vasco completed a WSIR, which seems to me to contain a sufficient record of his inspections. His role was simply to inspect the roadway and the footway and to identify defects, including actionable potholes. Those defects would include defects whether in way of cellars of not. Moreover, if the judge was criticising the way in which Mr Vasco carried out his inspection in May 2005 -- which he may not have been -- it would not have been fair to do so. Indeed, Mr Buckley, entirely properly, made it clear in the course of his cross-examination at page 32A that he (that is, Mr Vasco) discharged his duties admirably; the suggestion being made was different, namely that he was not required to foresee something which might cause problems in the future.
18. As I read his judgment, the judge's conclusion was based on the evidence that defects caused by the "collapse" of cellars can occur quickly and that inspections should have been much more frequent, say, every month or two months. He focused on paragraph 8.9.2 of the guidelines, which I quoted earlier, and said that there was no evidence that any risk assessment had been carried out of the problems relating to footways over cellars. In the absence of a risk assessment, it was not possible to assert that the council was following the guidelines. It was not for him to have regard to the evidence that cellars gave rise to few problems, because without a risk assessment it was impossible to conclude that inspecting twice a year was sufficient. I should add that the judge also concluded that, even if he was wrong about the risk assessment, the council had not established that a period of six months was a reasonable period, given the fact that potholes caused by defects in cellars occur suddenly over a short period.

Discussion

19. Mr Buckley has referred us to two particular cases which have considered similar problems under section 58 of the 1980 Act. The first is Atkins v London Borough of Ealing [2006] EWHC 2515 (QB), which was an unreported decision of Teare J on 17 October 2006. It related to an accident which occurred when a manhole cover tilted, causing the claimant's foot to fall through into the hole and causing the claimant injury. An appeal by the defendant council failed. As I see it, the case was simply an application  of  section  58 to the particular facts of the case and does not  help  here  one way or the other. The second case was Jacobs v Hampshire County Council The Times, May 28, 1984 (QBD), which was a decision of Skinner J reported in The Times some time in 1984. Skinner J said:

"…that, in assessing whether a council has a defence under section 58 of the 1980 Act, it is necessary to take account of the sort of traffic which would foreseeable use the highway and the character of the road itself."

I agree. Skinner J added:

"In determining the regularity of highway inspections, the council had had regard only to the type of area in which the highway was situated and the likely degree and type of use. They should also have taken account of the actual design of the carriageway concerned, in this case tarmac and adjoined cobbles at the edge of the carriageway, rendering it particularly vulnerable to water penetration."

Again, I agree.

20. Each case depends on its own facts. One of those facts will be the particular risk involved. Nothing in this judgment is intended to undermine the basic proposition that it is for the council to have regard to all the circumstances of the case, including those enumerated in paragraphs (a) to (e) of section 58(2). In doing so, the council must of course assess the risks, and take all reasonable steps to put in operation the system that will secure that the relevant part of the highway is not dangerous to users. In this case it was the responsibility of the council to assess the risk and to have regard to all the circumstances, including those in section 58(2) (a) to (e). The question is whether it did so, notwithstanding that there is no evidence that it carried out a formal risk assessment of the kind contemplated by paragraph 8.9.2 of the guidelines. As I read that paragraph, it is concerned with identifying in which category the particular footway should be put. Here, as I indicated earlier, the footway was put in the link footways category, and no one suggests that that is wrong. This is not to say that the underlying principles of the guidelines do not apply in respect of particular risks within a particular category. So, for example, if there were a concern that the cellars of Derby were in such a state as to give rise to a possible risk of catastrophic collapse, it would be necessary to carry out a risk analysis to identify the nature of the risk, which might well require the council to carry out internal inspections of the cellars. However, each case and problem depends upon its own circumstances.
21. Once it is appreciated that "collapse" does not mean catastrophic collapse, but collapse sufficient to cause the pit and indentation referred to here, the position is quite different. Moreover, once the evidence of Mr Vasco is accepted that only a handful of problems has been caused by cellar collapse, by comparison with some 4,000 actionable potholes which have been formed by other causes, it can, to my mind, be seen that it would not be reasonable or proportionate to introduce a different inspection regime from that which it used for the majority of potholes; at any rate, where that regime is agreed to be reasonable, as here. That is to my mind so, even if that handful of problems occurs suddenly or quickly. It seems likely to me that the same can be said of at least some of the 4,000 potholes, even if many of those form more gradually.
22. In all these circumstances I have reached a different conclusion from the judge. I am persuaded by Mr Haque's submissions to conclude that the council has taken such care, as in all the circumstances was reasonably required, to secure that the footway was not dangerous to pedestrians. None of the specific matters identified in paragraphs (a) to (e) of section 58(2) of the 1980 Act, nor the general provisions in section 58(1), lead me to any other conclusion. I appreciate that this conclusion leaves the claimant without a remedy, and I have every sympathy for her, but, for these reasons, I would allow the appeal.

Lord Justice Laws:

23. I agree that the appeal should be allowed for the reasons given by my Lord, the Master of the Rolls.

Lord Justice Longmore:

24. I also agree.

Order: Appeal allowed