England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM COUNTY COURT
Mr Justice Hamblen
NG02425

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2011

Lord Justice Tomlinson :

1. This is the judgment of the court.
2. On 20 October 2006 the Respondent, Mrs Karen Dalton, stumbled and fell whilst walking across a pedestrianised area known as The Square in Beeston town centre. One of her feet had come into contact with what she told her husband shortly thereafter was a loose, raised and wobbling paving block. She sustained a serious and unpleasant injury to her left leg. The Appellant Council bears responsibility for the maintenance of this area which is for present purposes a highway – see Highways Act 1980 s.41. After a short trial at Nottingham on 16 June 2010 Hamblen J held that the Council was liable to Mrs Dalton in respect of her injury.
3. The Council appeals. Permission to appeal to this court was granted because it seemed to Smith LJ on the ex parte application arguable that the judge had failed to reach an independent conclusion that, in the ordinary course of human affairs, danger may reasonably have been anticipated from continued use of the area in question by pedestrians. Smith LJ thought that the judge may have fallen into the error of deciding that because the Council's Highway Inspector subsequently concluded that the area in question was in need of urgent attention, that was without more determinative that the condition seen by the inspector was in the relevant sense dangerous so as to attract liability. On the appeal Mr Geoffrey Brown for the Council, who did not appear below, sought permission to amend the Grounds of Appeal so as to mount a challenge to many if not all of the judge's essential findings of fact. The judge had, he suggested, failed to follow a proper process of fact-finding. Moreover the judge had, submitted Mr Brown, imposed upon the Council standards of inspection and maintenance which were simply too high and failed to recognise a proper balance between private and public interest. Mr Iain McLeod, for Mrs Dalton, who likewise did not appear below, did not oppose this broadening of the Grounds of Appeal and we permitted Mr Brown to develop all of his arguments.
4. At the conclusion of Mr Brown's address we did not find it necessary to call upon Mr McLeod and we announced that the appeal would be dismissed for reasons which we would give in due course. These are our reasons. It is worth mentioning at the outset that the case in our view raises no issue of principle. We accept that highway authorities are not guarantors of public safety and that they are rightly sensitive to attempts to impose upon them, and thus upon their hard-pressed council tax payers, a standard of inspection and maintenance which is unrealistic or disproportionate. There were however here present particular features which in our view both established the breach of duty and precluded the Council from reliance upon the statutory defence afforded by s.58 of the Act.

The facts

5. The accident occurred at or close to the mouth of an alleyway, known locally as a twitchell, running from the north side of The Square towards Broxtowe Town Hall. The twitchell runs between the premises of HSBC Bank and the Derbyshire Building Society. The area is covered in what are described as paving blocks, laid in, broadly speaking, a herringbone pattern. The paving blocks are approximately the size of a traditional house brick and are, we suspect, although this is of no relevance to the dispute, made of concrete or something like concrete. Underlying the paving blocks is a concrete raft, covered with a layer of sand. The paving blocks are then laid on the sand and compressed.
6. The particular paving block which caused Mrs Dalton to fall was not a complete block. It was approximately one quarter the size of a complete block and triangular in shape. It could have been created by halving a block and then halving one of the resulting halves by cutting it on the diagonal axis. The dimensions were, asserted Mr Brown, four inches by approximately four and a quarter inches for the two sides adjoining the right-angle and 5.84 inches for the hypotenuse. We have photographs of the area in question taken by Mr Dalton after the accident. The particular area at which Mrs Dalton fell is a rather messy area of paving in the sense that it is an area at which the integrity of the herringbone pattern is rather obviously and unattractively compromised. The reason for this is that there are in close proximity four, irregularly situated "utility service valves" which left to our devices we might have described as the hinged cast iron lids covering water stopcocks. These covers are themselves surrounded by complete blocks laid parallel to the sides of the covers, although the covers are not themselves in perfect parallel one with another, with some spaces filled in with concrete. Where the parallel laid blocks meet the herringbone pattern there are a number of irregularly shaped part blocks inserted to fill the irregular spaces which inevitably result. The triangular shaped block on which Mrs Dalton stumbled is one such. The area in question has an unpleasant and untidy patchwork appearance.
7. It was accepted by Mr Brown that there was inevitably the potential for a part block laid in such an area to work loose, particularly where as here the area was regularly traversed by delivery vehicles. It was, we think, a location which attracted the need for particular vigilance in inspection. The reason for this is twofold. Firstly, it was an area in which the integrity of the overall pattern in which the blocks were laid was severely compromised and where small irregularly shaped part blocks had the obvious potential to work loose. Secondly, the twitchell formed the natural route between the Town Hall complex and the pedestrianised shopping area. The judge heard evidence from Mr Frank Fearn, who was at the time a Highways Inspector for Broxtowe Borough Council^[1], which council inspected and maintained the area pursuant to an agency agreement with Nottinghamshire County Council. It was accepted that it was upon the Appellant, Nottinghamshire County Council, that the relevant statutory duties were cast. Mr Fearn said in evidence:-

i) that Beeston Square is the most important pedestrian area in Beeston and that he therefore tried always to be particularly careful when carrying out his inspections;

ii) that he was aware that the part of The Square in question was used as a means of vehicular access in consequence of which he expected to find defects along this particular stretch of paving;

iii) that most of the employees working in the Town Hall would leave at lunchtime and pass down the twitchell to the shopping area, in consequence of which he was "very careful due to the exact location of those blocks".

8. Mr Dalton was summoned to the scene of the accident by telephone by a nurse who happened to be passing by when Mrs Dalton fell and who was attending her at the scene. Mr Dalton arrived within ten minutes of the accident and found his wife lying at the scene in great pain and distress, awaiting the ambulance and paramedics. He knew therefore where his wife had fallen and she related to him that she had fallen as a result of a loose, raised and wobbling paving block. The evidence of Mrs Dalton, which the judge accepted, is that she stumbled on a loose paving block, overbalanced and fell to the ground. Her fall resulted in a spiral fracture to the head of the femur in her left leg, requiring hospitalisation for eleven days and surgical repair involving the use of various metalwork.
9. Nine days after the accident Mr Dalton revisited the area in order to inspect it and to take photographs. He found a triangular piece of block which was very loose and raised relative to its neighbours. It had weeds growing around it. He said in evidence, and the judge accepted, that he stood on it and touched it and that it was "moving, rocking". He took photographs and his wife identified this as the piece of block on which she had stumbled. Its appearance and its characteristics as ascertained by Mr Dalton corresponded with Mrs Dalton's earlier report to her husband that she had fallen as a result of a loose, raised and wobbling paving block. The judge was satisfied that the part-block photographed by Mr Dalton and identified by his wife was indeed the block over which Mrs Dalton had stumbled.
10. In the context of attempting to identify by reference to the photographs where precisely Mrs Dalton had fallen she was asked one question in cross-examination which was phrased in terms of a block upon which she had tripped. Mrs Dalton answered using the same tripping terminology. There was however no questioning of Mrs Dalton directed to ascertaining whether she had, in the language of Mr Brown on the appeal, simply tripped, or whether the mechanism of her fall was different or more complex, involving her losing her balance in consequence of placing her weight upon a wobbling block.
11. Mr Dalton attended the scene of the accident again on 6 November 2006. By now it was colder and some of the vegetation around the part-block had died off. He could see around the sides of the part-block where there were lodged cigarette ends. He was able to remove the block easily with his hands and he took further photographs of the area with the block both in position and removed.
12. Mr Dalton attended the scene again on 14 December 2006. By now the block had been identified with yellow paint and relocated within its space and the surrounding void filled with sand.
13. Mr Dalton attended the scene yet again on 30 December 2006, this time accompanied by a friend, Barbara Duce. The judge found that by now some repairs had been carried out to the block in question, or perhaps more appropriately to the manner in which it was laid. Possibly the block itself had been replaced by another. Barbara Duce helped Mr Dalton to take a photograph with a ruler placed up against the side of the block or what was thought to be the block, with a view to recording a measurement of the extent to which the block stood proud of its neighbours. Before us Mr Brown sought to cast doubt upon the extent to which a distorted perspective precluded any accurate deduction from this photograph, but before the judge it appears to have been accepted that it shows a differential of "close to" three quarters of an inch and the judge found that it indicated a differential of over three-quarters of an inch.
14. Prior to Mrs Dalton's accident there had been no public liability claims relating to The Square since March 2000. Broxtowe Borough Council had received no complaints about the condition of The Square and no reports of any accident having occurred there since April 2005.
15. The judge's findings as to the manner in which The Square was inspected were as follows:-

"12. The inspection regime which the Second Defendant operated through the agency of the First Defendant was based on paragraph 5.12.17 of the Second Defendant's Highway Network Management Plan which was published in 2005. The Second Defendant's policy itself derived from the national publication Well Maintained Highways: Code of Practice for Highway Maintenance which was produced by the UK Roads Board on behalf of the Department of Transport.

13. As a busy urban shopping and business area The Square was classified as a primary walking route and as such was subject to safety inspections at monthly intervals. Mr Fern exhibited records of the inspections of The Square that he carried out on foot on 12^th July 2006, 28^th July 2006, 11^th September 2006, 11^th October 2006, 1^st November 2006 and 4^th December 2006. The area was inspected nine days before and 11 days after the Claimant's accident and nothing untoward was recorded.

14. In one respect the criteria that Mr Fern was instructed by the First Defendant to apply when deciding whether a defect was sufficiently serious to warrant an urgent repair were actually more stringent than the Second Defendant's policy document. This suggested that defects his inspections would be seeking to identify should include, "Abrupt changes of level of highway surface exceeding 25mm on the footway or carriageway" whereas the First Defendant's intervention level was a height difference on a pavement of over 20mm.

[I interpose to point out that 20mm is about four fifths of an inch and therefore a little more than three quarters of an inch.]

15. In a high priority area such as The Square a defect such as this would represent a category 1 defect and would prompt Mr Fern to raise an emergency repair order which would be acted upon within 24 hours. This was the repair order issued by Mr Fern on 4^th December 2006. A category 1 defect means that it represents an immediate or imminent hazard. The emergency repair order issued by Mr Fern called for extra overtime and for attendance within 24 hours. Mr Fern's evidence was that he issued this repair order because the stone was found to be unstable. His evidence was that he found a stone to be moving and an emergency repair order was issued. The repair order was, therefore, issued because of instability rather than height difference although, as Mr Fern accepted, instability may in itself lead to height differences occurring. "

16. The repair order to which the judge refers at paragraph 15 of his judgment appears more accurately to have been a repair order of 6 December 2006, which was issued in consequence of the inspection which Mr Fearn carried out on 4 December 2006. It was issued by Mr Fearn in ignorance of Mrs Dalton's accident at this spot some six or seven weeks earlier. The judge described the repair order as identifying the stone for replacement. It is not entirely clear whether the import of the order was that the stone was to be replaced or rather relaid, but nothing turns on this as what is clear is that the area was identified as being in need of repair because the stone in question was loose, as were indeed, said Mr Fearn, several other stones.
17. The judge continued:-

"16. Mr Fern's evidence was that he issued the repair order because there had been a deterioration since his two previous inspections on 11^th October and 1^st November 2006 respectively. In his witness statement he said that he distinctly recalled putting his foot on the stone to see if it rocked during his inspection on 1^st November and he had found that it did not. There is, therefore, a tension between the evidence of the Claimant and her husband and Mr. Fern. The evidence of Mr. Dalton was that the stone was very loose on 29^th October and on his subsequent inspections and that there was evidence that it had been so for some time. The evidence of Mr. Fern is that it was not until December that it became sufficiently loose to require repair. The fact that on 4^th December the stone was given a category 1 rating is clear evidence of its dangerousness at that time. The danger arose because it was loose and unstable. This meant not only that it was unstable to step on but also that it could be moved around and its edge raised from that of the surrounding stones, potentially significantly so.

17. I consider that it is inherently improbable that this looseness and instability arose only between October and December. The circumstances of the accident, as described by the Claimant, whose evidence I accept, is clear evidence that it was loose and unstable at that time. This is borne out by the evidence of Mr Dalton's inspection only two days later on 29^th October and by his photographs. It is further borne out by his inspection on 6^th November. It is further supported by his observation of a lack of sand around the stone, as clearly shown in the photographs, in particular those of 6^th November when the stone could be and was easily removed.

18. Against that there is the evidence of Mr Fern's apparently satisfactory inspections on 11^th October and 1^st November. However, considering the evidence as a whole I am satisfied that, whilst there is no reason to doubt that Mr. Fern is generally a conscientious and diligent inspector and that the Second Defendant has generally maintained The Square in a good and safe condition, on these occasions he missed this particular defect. As Mr. Fern accepted, the most obvious defects are height differences and instability requires a closer and more detailed examination. This was a small stone and it may have been laying reasonably flat when inspected by him on those occasions. However, whatever the reason may be, I am satisfied that on his inspections of 11^th October and 1^st November he did not notice the instability of this particular stone. He accepted if it was unstable then he would be expected to notice it and issue an emergency repair order. As to Mr Ferns' evidence as to his specific recollection that the stone did not rock when inspected by him I consider that this is reconstruction rather than recollection. In his statement he mentioned doing so only during his 1^st November inspection. In oral evidence he said he did so on his October inspection and then that he did so on all his inspections. He may have convinced himself that he did so but I find that he did not.

19. I, therefore, find that on 20^th October 2006 the stone was in materially the same condition as when it was made the subject of a repair order on 4^th December 2006. It was loose, unstable and could move around."

18. It is plain from both Mr Fearn's witness statement and from his oral evidence that he equated looseness and instability. He said in evidence that if the block had moved when he put his foot on it on 11 October he would have issued a work order. However Mr Fearn had in his witness statement mentioned inspecting the block by putting his foot on it only in relation to his 1 November inspection. In his cross-examination he asserted first that he had likewise done so on 11 October and then that he had done so on all inspections. He said that that is what he would normally do in relation to this precise location. The judge rejected as unreliable Mr Fearn's evidence that he had put his foot on the block on each occasion on which he inspected the area and concluded that for whatever reason Mr Fearn had failed to observe in his inspections on 11 October and 1 November 2006 that the stone was already by then unstable. Mr Brown accepted that he could not realistically challenge the judge's conclusion that the block was on 20 October 2006 in materially the same condition as it was on 4 December 2006.

The law

19. The judge directed himself as to the applicable law as follows:-

"5. Section 41 of the Highways Act 1980 provides, so far as material,

"Duty to maintain highways maintainable at public expense:

(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".

By virtue of section 329(1)-

"Maintenance includes repair and 'maintain' and 'maintainable' are to be construed accordingly . . ."

6. In Mills v. Barnsley Metropolitan Borough Council [1992] P.I.Q.R. p291, the Court of Appeal considered the essential elements of a claim under section 41 and concluded, (per Steyn LJ, at 292-293) that, "In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failing 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."

7. In that case it was pointed out that the standard to be expected of the highway authority involves a balance between the public and private interests and should not be set too high. Steyn LJ stated at page 295,

"Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which, in a less than perfect world, the public must simply regard as a fact of life. It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest. The judge's ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was, unfortunately, injured in this case. The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous."

Similarly, Dillon LJ, commented at page 295:

"The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all. The question is whether a reasonable person would regard it as presenting a real source of danger. Obviously, in theory any irregularity, any hollow or any protrusion may cause danger, but that is not the standard that is required."

8. If the Claimant succeeds in establishing the various elements of her claim under section 41 it will then be necessary to consider the Second Defendant's reliance on the statutory defence. Section 58 of the 1980 Act provides,

"(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.""

The arguments on the appeal

20. Mr Brown was critical of the judge in failing to make a finding as to the precise extent to which the block could wobble and submitted that the degree of tilt possible must have been small. He was also critical of the judge in failing to make a more specific finding as to the precise mechanism of Mrs Dalton's fall. A simple trip would not he suggested have attracted liability unless the height differential between this block and its neighbours was significantly greater than the "over three-quarters of an inch" measured by Mr Dalton. The judge had not, submitted Mr Brown, made a finding to the effect that standing on the block would be liable to cause a person to lose balance. Thus Mr Brown challenged the judge's conclusions both as to dangerousness and on causation.

Discussion

21. We doubt whether any cross-examination of Mrs Dalton as to the precise mechanism of her fall would have been productive but we have already observed that in any event such a cross-examination did not take place. The judge's finding was that she stumbled on a loose and wobbling paving block and overbalanced. This finding is, we consider, apt to embrace both the height differential and the circumstance that the block was loose and that it wobbled as being causative of her fall. When walking on a country path or track one can reasonably expect to encounter stones underfoot upon which one may either trip or by which one may be thrown off balance because they wobble or shift. When walking on an urban pedestrian area one must be aware of reasonable height differentials but one does not expect the structure underfoot to be shifting in nature. To require of the judge a finding as to the extent to which the block could wobble seems to us to require a scientific enquiry and a degree of precision going far beyond anything suggested as appropriate at the trial.
22. We have no doubt that the condition of the block on 20 October 2006 was dangerous in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from the continued use of that area by the public. The block was loose, unstable, wobbling, proud of its neighbours and moreover its height relative to its neighbours was capable of being altered. This was not therefore a case in which the danger lay only in a difference in level between two adjacent surfaces. It was also a block which had the potential to wobble underfoot and cause a pedestrian to overbalance. Mrs Dalton was forty-nine at the time of the accident and it was not suggested that she had any attributes taking her out of the norm of pedestrians likely to encounter this paving block.
23. We do not consider that the judge's findings on dangerousness and causation can sensibly be challenged. The judge did observe that his finding that the block constituted a danger was clearly evidenced by the category one repair order made in December 2006 and that Mr Fearn's grading of the need for a category one repair was tantamount to an assessment by him that the highway was dangerous – judgment paragraph 20. We do not think that the judge thereby lost sight of the need to make his own independent assessment of dangerousness. The issue of a category one repair order was indeed a powerful pointer to the correctness of his conclusion. We are not impressed by Mr Brown's point that the criterion for the identification of a category one defect is an "immediate or imminent hazard" and that an imminent hazard may not be synonymous with dangerousness. An immediate or imminent hazard is something which, in this context, presents a danger to users of the highway. In Esdale v Dover District Council [2010] EWCA Civ 409, a case decided under the Occupiers Liability Act 1957, it was held by this court that a failure by a council to comply with its own policy as to standards of safety is not determinative of the question whether the Council has in all the circumstances taken such steps as are reasonable to see that visitors are reasonably safe. This is obviously so, since the council's policy may either fall below or exceed that which is reasonable. But where a council has an inspection and maintenance regime couched in terms of the identification of an immediate or imminent hazard, the identification by the council of a defect so defined is obviously powerful evidence of the presence of a danger against the risk of which the council can reasonably be expected to take steps to safeguard the public. Nor do we consider that in assessing dangerousness in this case the judge set the standard too high. We accept that minor depressions and holes in pedestrian areas are a fact of life. Here however the danger lay in the combination of height differential and instability, moreover it was in the mouth of the twitchell, a particular area which called for vigilance going beyond even that which The Square as a whole was acknowledged to attract.
24. That brings us to the judge's rejection of the defence under s.58. The judge pointed out in relation to s.58(2)(a) that this was the main square in the centre of the town that received high pedestrian and vehicular usage. He might also have added that the mouth of the twitchell was a particularly significant area in terms of concentrated pedestrian usage. He observed in relation to s.58(2)(c) that "members of the public cannot expect to walk on a bowling green but they should not expect to find paving stones in a main square loose in their aperture". We have already expressed agreement with this approach, to which we would merely add the emphasis that the stone was not just loose but wobbling. The judge regarded s.58(2)(d) as here the most critical factor. In relation to this he said:-

"I find that the [County Council] 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]. The defect should have been picked up on Mr Fern's 11 October inspection and dealt with by means of immediate repair, as it was following his inspection on 4^th December. I find that the [County Council] have not shown that they took such care as was in all the circumstances reasonably required to secure that this paved area was not dangerous and that the s.58 defence has not been made out."

Mr Brown submitted that Mr Fearn could not reasonably have been expected to have noticed a height differential at less than the County Council's prescribed intervention level of 25mm. We do not think that this case turns on any precise measurement of the height differential between this block and its neighbours. We accept that the evidence on this aspect is inconclusive. However as we have already sought to emphasise the more telling feature here is that the block was loose and wobbling, with the consequence also that its height relative to its neighbours had the capacity to vary. As to this Mr Brown submitted that if the judge's conclusion was that Mr Fearn had not in his 11 October (and 1 November) inspection stepped on the block, how was he to know that it was unstable? The short answer to this point is that it is obvious from the photographs alone that the block was both proud of its neighbours and probably insecure. Its visual appearance cried out for closer inspection. Given its appearance, and given its location, it cried out for a close inspection of the sort which Mr Fearn himself described as both prudent and his normal practice. In his cross-examination he said this:-

". . . due to the location, as I've just stated, due to the location of blocks in question around the utility service valves that are always a point of interest, and again because it was the bottom of the twitchell from the Town Hall, so upon each inspection at any location where there's service valves or utility apparatus it is always prudent to put your foot on the surrounding materials to ensure that they're stable."

25. The judge concluded that Mr Fearn did not do this in the course of his 11 October inspection. The judge's conclusion that the Appellants have not shown that they took such care as was in all the circumstances reasonably required to secure that this paved area was not dangerous and that the s.58 has not been made out is in our view unassailable.
26. It was for these reasons that we announced that the appeal would be dismissed.

Note 1   Broxtowe Borough Council was at one time First Defendant and Nottinghamshire County Council Second Defendant. The proceedings against the First Defendant were discontinued upon the Second Defendant accepting that it bore statutory responsibility for the maintenance of the area in question.    [Back]