ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE HAWKESWORTH QC)
Strand, London, WC2A 2LL
B e f o r e :
(LORD NEUBERGER OF ABBOTSBURY)
LORD JUSTICE WILSON
LORD JUSTICE TOULSON
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City of York Council
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Mr Patrick Limb QC (instructed by Messrs Berrymans Lace Mawer LLP) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Toulson:
"(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.
(1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice." [That subsection was added by amendment in response to the decision of the House of Lords in Goodes]
"(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;
(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;
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."
"Any variations in policies and practice from that identified by this Code should be derived following a risk assessment, then approved, adopted and published by the authority. The approval and adoption process should involve the authority's Executive and be explicit, transparent and inclusive."
"Roads linking between the Main and Secondary Distributor Network with frontage access and frequent junctions."
The code adds:
"In urban areas they are residential or industrial inter-connecting roads with 30 mph speed limits, random pedestrian movements and uncontrolled parking."
"In urban areas they are often residential loop roads or cul-de-sacs."
"Q. What are the reasons why we have a deviation from the code of practice here, what is accepted as good practice and why?
A. It is a matter of both financial and manpower resources.
A And manpower resources. When we prepared the Highway Inspection Repair Manual, we looked at the highway network in its entirety and what the inspectors could manage within that timescale.
Q. For the amount you employ?
A For the amount we employ on there yes at that time, as we still employ the same number of inspectors now as we did then and also its the financial constraints, to do with budgets."
"Q. Are you personally familiar with Whitby Drive and Whitby Avenue?
A. Yes, yes.
Q. Because I have been told and we have seen in the papers that there is [a] school on Whitby Avenue, there is a medical centre and some commercial premises round where the claimant was employed as well as all the houses and medical centres are fairly busy places, I think.
A. They can be, yes.
Q. Everybody is going in and out all day, with their aches and pains, and I am assuming it is in an urban area with a large catchment area?
A. It is.
Q. It is all relative of course of what is heavily trafficked but it's not just local residents. It is people from further afield who are going to be going there
A. I would assume so, sir, yes."
"Q. Category is 4 is, 4A first of all, all other local traffic routes basically apart from 4B which is those local access roads serving a limited number of properties
Q. That is essentially cul de sacs and dead ends isn't it, serving a limited number of properties
"6. The claimant contends for a breach of Section 41 of the Highways Act, in essence a failure to maintain and the defendant contends for an application of Section 58.1 that indeed there has been sufficient care in relation to the maintenance of the relevant highway.
7. There is a code adopted by all local authorities to assist them in these matters. Put in general terms there is the hierarchy of road standard inspections and repairs that is contained in the bundle and has been referred to at length. The defendant has what appears to be a commendable system of inspection and repair based on their amended version of the code. The court has been helped by Mr Sweetman and Mr Watkins in relation to that.
My finding is that, commendable as it was, the system was not sufficient in relation to Whitby Drive. If there had been an inspection at three monthly or even six monthly intervals then the pothole of which the claimant complains would have been discovered and rectified well before the date of Miss Wilkinson's accident. Failure means that in the view of this court, the Section 58.1 defence must fail and the Section 41 claim must succeed."
"It seems to me that resources are always a factor, and it is a balance between what the ratepayers will bear and how the resources should be allocated, which is a matter for the elected members of the council. A judge, it seems to me, should be slow to reject the evidence given by a responsible council official that resources did not permit a more frequent inspection than that which was given."
"The principles laid down are clear. 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)."
"The duty to 'maintain' in the sense of repair and keep in repair is an absolute duty. This was emphasised by Diplock LJ in Griffiths v Liverpool Corporation  1 QB 374-389 where he said: 'It was an absolute duty to maintain, not merely a duty to take reasonable care to maintain...' In this respect it is like the duty to fence under the Factory Act. If a machine is not securely fenced, the occupier of the factory is liable even though he has not been negligent at all. So also if a highway is out of repair there is a failure to maintain, even though the highway authority has not been negligent at all. But this absolute duty is confined to a duty to repair and keep in repair. It was so stated by Diplock LJ himself later in Burnside v Emerson  1 WLR 149-1497 when he said: 'The duty of maintenance of a highway which was, by section 38.1 of the Highways Act 1959, removed from the inhabitants at large in the area and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of a neighbourhood at all the seasons of the year without danger caused by its physical condition'."
Lord Denning continued:
"Maintain does not, however, include the removal of obstructions, except when the obstruction damages the surface of the highway and makes it necessary to remove the obstruction so as to execute repairs."
"Sub section 2 [of section 1 of the Highways (Miscellaneous Provisions) Act 1961, which is now section 58 of the 1980 Act] does not in my opinion make proof of lack of reasonable care on the part of a highway authority a necessary element in the cause of action of a plaintiff who has been injured by danger on the highway. What it does is to enable the highway authority to rely upon the fact that it has taken reasonable care as a defence -- the onus of establishing this resting upon it. A convenient way of expressing the effect of the subsection is that it does not qualify the legal character of the duty imposed by subsection (1) but provides the highway authority with a statutory excuse for not performing it...
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 incident."
Lord Justice Wilson:
Order: Appeal allowed