England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY AND FAMILY COURT
(HHJ SEYS LLEWELLYN QC)

		Royal Courts of Justice Strand London, WC2
		22nd October 2015

LORD JUSTICE CHRISTOPHER CLARKE:

1. On Saturday 30^th May 2009 Melvyn Griffiths, then about 52, was going for a day out on his bicycle. That took him along a high mountain road, known locally as the Roman Road, on the way to the village of Croesor. The road is neither an A nor a B road. It is not particularly wide, being generally less than 4 metres. The road was probably originally a gravel track with a thin layer of tarmac on top of it. It has gradients of between 14% and 20% in places and sometimes over 20%. As you go along it you will find gravel on the road, vegetation, and changes of camber and of gradient. It is one of the many highways for which the Gwynedd County Council is legally responsible.
2. There came a point when Mr Griffiths rounded a bend and continued cycling downhill. He was not racing but cycling at a moderate speed. As he did so he came upon some debris in the form of small stones, gravel and manure. When he came upon the debris he made a sudden and strong change of direction (to the left) in order to avoid the debris and came upon a defect on the edge of the road on his left side. The defect consisted of the fact that the edge of the road had suffered damage, in that the tarmac surface had come away leaving an area of gravel, the original base layer, which was at a lower level than the top of the surrounding tarmac. The defect was, so the judge found, visible on approach from the corner for some 21 metres. As he moved to avoid the debris he was applying the brakes. The effect of his coming into contact with the defect was to jolt his hands, with the result that he was catapulted from his bike and fell to the ground suffering some significant injuries, cuts and wounds, damage to one finger and a blow to his head and a loss of consciousness for a short time.
3. Mr Griffiths claimed damages from the Gwynedd County Council as the highway authority. His Honour Judge Seys Llewellyn QC, sitting in the Wrexham County Court, dismissed his claim, holding that the defect in the road was not a danger. If the claim had been successful he would have reduced the damages by 20% to allow for Mr Griffiths' contributory negligence, as he found it to be.
4. From that decision Mr Griffiths appeals. Tomlinson LJ refused permission to appeal on paper. On an oral renewal Aikens LJ gave permission to appeal on the issue of dangerousness.
5. The road in question is remote. It is the secondary of two roads which lead to the very small village of Croesor. During the week it was likely to be used only rarely by cyclists but at the weekend it was likely to be used by cyclists sporadically, occasionally in groups as well as singly.
6. The practice of the council was to inspect the road twice a year. The last inspection before the accident was in February 2009 when the defect was there to be seen.
7. The facts to which I have so far referred are those which were found by the judge.
8. The council was guided by a Code of Practice entitled "Well-Maintained Highways". That divided road defects into different categories. Category 1 covered defects which required prompt attention because they represented an immediate or imminent hazard or because there was a risk of short term structural deterioration. Category 2, which included all other defects, was composed of those defects which following a risk assessment were deemed not to represent an immediate or imminent hazard or risk. Paragraph 9.4.19 of the Code reads as follows:

"Category 1 defects should be corrected or made safe at the time of the inspection if reasonably practicable. In this context, making safe may constitute displaying warning notices, coning off or fencing off to protect the public from the defect. If it is not possible to correct or make safe the defect at the time of inspection, which will generally be the case, repairs of a permanent or temporary nature should be carried out as soon as possible, and in any case within a period of 24 hours. Permanent repair should be carried out within 28 days. Some authorities have formally adopted a higher level response time of 2 hours for those Category 1 defects considered to pose a particularly high risk. Others, whilst not formally defining such a high risk category, have arrangements in place to deal with situations requiring a particularly urgent response as they arise."

Paragraph 9.4.20 of the Code provides as follows:

"Category 2 defects are those which, following a risk assessment, are deemed not to represent an immediate or imminent hazard or risk of short term structural deterioration. Such defects may have safety implications, although of a far lesser significance than Category 1 defects, but are more likely to have serviceability or sustainability implications. These defects are not required to be urgently rectified and those for which repairs are required shall be undertaken within a planned programme of works, with the priority as determined by risk assessment. These priorities together with access requirements, other works on the road network traffic levels, and the need to minimise traffic management, should be considered as part of the overall asset management strategy. The programmes of work for their rectification should be part of the HAMP."

9. It is to be noted that Category 2 defects were not necessarily those with safety implications. Paragraph 9.4.21 provides:

"Category 2 defects may be categorised according to priority, high (H) medium (M) and low (L). Authorities should adopt a range of local target response times for Category 2 defects and apply them in responding to various categories of defect based on the risk probability and its likely impact. This should also take into account the likelihood of further deterioration before the next scheduled inspection, and where this is a high probability, the defect should either be dealt with as Category 1 or an intermediate special inspection programmed."

Paragraph 9.5.3 provides as follows:

"All risks identified through this process have to be evaluated in terms of their significance, which means assessing the likely impact should the risk occur and the probability of it actually happening. A defect risk register will considerably assist the risk evaluation process. Although it may not be possible to include every conceivable risk, the register identifies a wide range of risks likely to be encountered. This enables the vast majority of all risks actually encountered through comparison, interpolation or extrapolation, to be assessed with the identified risks. The risks contained in the register are based upon the highest assumed risk attributable to the type of defect, position and assessed type of usage. Local knowledge could assess the risk differently."

The last sentence is of some importance. It is reflected in the provisions of appendix B to the Code, which sets out in B.2.1 a checklist of deficiencies to be identified during safety inspections. These include pot holes, cracks or gaps and edge deterioration in the running surface. Paragraph 3.1 provides:

"Whether these defects should be treated as Category 1 in particular circumstances and the nature and speed of response will depend, amongst other things, upon the assessed risk posed by:

• the depth, surface area or other degree of deficiency of the defect or obstruction;

• the volume, characteristics and speed of traffic;

• the location of the defect relative to highway features such as junctions and bends;

• the location of the defect relative to the positioning of users, especially vulnerable users, such as in traffic lanes or wheel tracks;

• the nature of interaction with other defects;

• forecast weather conditions, especially potential for freezing of surface water."

10. It is thus clear that in terms of the Code categorisation of risk as a Category 1 risk is dependent on a range of factors and is to be informed by local knowledge.
11. The Code provides a risk matrix which is based on an assessment of the impact of a risk occurring (Negligible, Low, Noticeable, and High) quantified on a scale of 1 to 4 and the probability of a risk occurring (Very Low, Low, Medium, High) also quantified on a scale of 1 to 4. Multiplication of the figure for the probability of risk by the figure for the impact thereof produces a series of figures ("the resulting figures"). The resulting figures were divided into bands. Those bands constituted different response categories which called for different response times. Thus, if impact and probability were both 4, the resulting figure was 16 which fell within Category 1. If the resulting figure was between 9 and 12, the category was Category 2, High. Subject to what I say in the last sentence of this paragraph, if the resulting figure was between 2 and 8, the category was Category 2, Medium; and, if it was between 1 and 3, the category was Category 2, Low. The resulting figures 2 and 3 produce either a Category 2, Low or a Category 2, Medium result because those figures could be reached by different means and the relevant Category into which they fell depended on how they were arrived at.
12. The response time suggested in the Code, by reference to an approach adopted by the Northern Ireland Roads Service were for Category 1, that the defect should be made safe or repaired within 24 hours. For Category 2, High, the response time was that the defect should be made safe or repaired within five working days. For Category 2, Medium, it was that there should be repair within 4 weeks; and for Category 2, Low it was that there should be repair during the next available programme, or there should be a scheduling of more detailed inspection, or a review of condition at the next inspection, based on an assessment of the risk of deterioration before the next visit.
13. The evidence of Mr Williams, the person at the Council responsible for the inspection of the road, was set out in paragraphs 24 to 26 of his witness statement which read as follows:

"24. At the time of the alleged accident inspections were largely based on convention and common sense.

25. As a 'rule of thumb' I use a guideline of 60 mm to represent an actionable category 1 defect but I used my experience and common sense when carrying out inspections.

26. If a defect was dangerous I would make arrangements for it to be repaired urgently. A category 1 defect must be made safe in 2 hours with a permanent fix in 28 days. A category 2 defect (any other defect) can go on any planned patching programmes."

14. In addition Mr Williams' evidence was that if he saw what he regarded as a Category 1 defect he would enter it on the inspection sheet which he used. If he did not consider that it was a Category 1 defect but nevertheless needed seeing to, he would record it in his notebook and the defect would go into the planning for ordinary maintenance.
15. The judge found that the likelihood was that Mr Williams saw the defect in question but did not think that it was a Category 1 defect. His notebook had not survived and the judge could not therefore tell whether it had been entered into the notebook or not.
16. In reaching his decision the judge took account of the fact that the defect was on the extreme left of the road. He found that the strong and sudden correction which Mr Griffiths made took him on a route, namely to the edge of the road, which one would not ordinarily expect a cyclist to take. Prior to the accident happening anyone looking down the road would, so he held, have regarded the possibility that a cyclist would cycle into the defect and "come to grief" as remote.
17. In this respect he took into account two further matters. On 20^th December 2008 a Mr Kenneth Griffiths, who lived on the road, had noticed the defect when he was returning home drawing a trailer on his 4 x 4. The trailer had a wider axle than the 4 x 4 and went over the defect with, as he put it, "a hell of a bang". But he did not report the defect to the council, although he said that, if he thought that it was a danger, he would have done so. Secondly, the claimant himself, although he took photographs of the scene monthly for about a year after the accident, did not actually report the defect to the council.
18. In reaching his conclusion the judge took into account the observations of Steyn LJ (as he then was) in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR 291, that tort law should not impose unreasonably high standards. He accepted the submission that the defect was wholly unremarkable for a road of this character on the roof of that part of the world with steep gradients. It was, he held, a type of defect which could be found at the edge of the road for mile after mile on hill roads of England and Wales and was not a danger in the necessary sense.
19. Although it was strictly unnecessary for him to do so the judge went on to consider the availability of a defence under section 58 of the Highways Act 1980. As to that he accepted that the defect was there at two inspections which had preceded the accident, the last of which was in February 2009. He found that in circumstances where no grading of the probabilities or of priorities for time of repair was carried out the local authority would be vulnerable to a finding that they had failed to take such care as was reasonable in all the circumstances. He held that if, contrary to what he had decided, the defect was dangerous, it was likely that a court which found that to be so, but which was not supplied with any information as to how and with what character Mr Williams had assessed it, would have found that the statutory defence was not made out. The county council accepts that if the defect was dangerous the statutory defence would not be available to it.
20. As is apparent the claimant alleged that the defendant Highway Authority was in breach of its duty under section 41 of the Highway Act 1980 to maintain the highway. That which the claimant has to prove in the first instance was described by Steyn LJ in Mills v Barnsley namely that "the highway was in such condition that it was dangerous to traffic for 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".

In the same case Steyn LJ said this:

"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 ever 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. In my judgment the plaintiff's claim fails on this first point."

21. In the light of that conclusion Steyn LJ felt it unnecessary to consider the defence under section 58 of the Act.
22. It is apparent from that passage that the extent to which a finding of dangerousness would impose an unreasonably high standard of obligations on the local authority is a relevant consideration in any determination as to whether or not the dangerousness test is satisfied. That question is separate from the question whether or not the authority has taken all reasonable care, so as to be able to avail itself of the statutory defence, which itself may raise questions of available financial resources.
23. The test is an objective one. Further guidance as to its application is to be found in the case of Jones v Rhondda Cynon Taff County Borough Council [2009] RTR 13. In that case this court overturned a finding of dangerousness. In giving judgment Laws LJ said this:

"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 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.'"

Then paragraph 12:

"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.'"

24. Mr Russell Moffat, on behalf of the appellant, submits that on the facts found by the judge no conclusion was reasonably possible other than that the highway was at this point dangerous to passing cyclists, who could be expected to be there at weekends albeit sporadically. In essence a chunk of road was missing which by its very nature was a hazard to the passing cyclist and something which the authority might reasonably be expected to guard against.
25. In support of this submission he relied on a number of matters. Firstly, a cyclist like Mr Griffiths was entitled to use the left-hand side of the road which was the correct side of the road for him to be on. There was debris on the road at the time of the accident in the form of stones and manure, which appeared to be a regular event in the light of the unchallenged evidence that gravel seemed regularly to wash onto the road. Mr Griffiths had encountered such debris on earlier stretches of the road. There was also manure which was not surprising because there were no fences to stop livestock straying onto the road. Most importantly, he submits, the defect fell into Category 1 on the council's own test. It was at least in some parts 80 mm in depth, as appeared from measurements taken from the bottom of a spirit level placed laterally across the defect. Given that Mr Williams' rule of thumb was that 60 mm brought the defect into the Category 1 level, it should have been acted on within the short time scale provided for Category 1 defects. Even if it was to score less than 16 on the risk matrix, it would still fall within at least Category 2Medium and require a response within at most 4 weeks.
26. Next, he relied on the fact the appellant's evidence was that the defect was not visible, given that he did not know about it until he came upon it, and his evidence that he thought that the defect was dangerous.
27. As to that, Mr Griffiths' subjective opinion as to danger was not determinative and the question of visibility was a matter for the judge to decide, as he did, on the evidence which he received.
28. The judge asked himself the right question. The question which he posed at paragraph 34 of his judgment was: "Was it dangerous in the sense that in the ordinary course of human affairs danger may reasonably be anticipated from its continued use by the public?" That question was the question posed in Mills v Barnsley. That does not of itself mean that he gave the right answer. His judgment that the test was satisfied would be open to challenge if he had ignored relevant, or taken into account irrelevant, considerations or was otherwise plainly wrong.
29. As to that the judge made findings as to firstly, the nature of the road and secondly, the extent of its use by cyclists. The nature of the road and the extent of its use by persons in the same category as the claimant is relevant in analysing the dangerousness of any supposed defect in it. What may well be dangerous in a much frequented thoroughfare may not be so in a little frequented carriageway where the highway is reasonably passable without danger. A defect in the road in the Highlands, occasionally used by cyclists, may not be dangerous when it would be so if the road was in Central London and was habitually used for cycle races involving large numbers of competitors.
30. Whilst it is no doubt correct that the claimant was entitled to be on any part of the road, at any rate in the absence of other people or vehicles, the site of the defect on the road was a material consideration in relation to the question of danger. The judge took into account the fact, firstly, that the defect was, as he held it to be, at the very edge of the road and there was ample room to pass to the right of it. Secondly, the defect was visible from about 21 metres or some 5 car lengths from around the bend. It seems to me that it was open to the judge to make the latter finding which derived from the evidence of Mr Williams. It was also open to him to find that a cyclist coming round the road was unlikely to use the extreme left in any event, particularly not if he has five car lengths of space to see the defect on a particular part of his left.
31. In those circumstances it was open to the judge to find that the possibility of a cyclist coming into a defect on the side of the road was remote, especially when a cyclist coming round the corner could be expected to be going not too fast and watching carefully what was ahead of him on account of the general state of the road, with which he would have been familiar on his journey to the place where the accident occurred.
32. The encounter with the defect happened in this case because of the peculiar circumstance that the claimant swerved to avoid some stones and manure. But the judge was, in my view, entitled to find that danger was not reasonably to be anticipated from the continued use, by such of the public as were likely to use it, of a road on which there was at the edge a defect of the type in question.
33. Although the matter was, as I have said, an objective question for him to decide, he was I think entitled at any rate to be reinforced in his view by the fact that Mr Kenneth Griffiths had been aware of the defects since December 2008 and had not reported it to the council, although he said that he would have done so if he thought it dangerous; and, secondly, by the fact that the claimant had not made a report to the council either.
34. The judge took into account the character of the road and the fact that the defects of this sort at the edge can be found for miles and miles on hill roads. If a particular feature is dangerous, the fact that there are lots of examples of it would not mean that the danger ceased to exist. But in deciding whether there is in truth a danger, the court is entitled to take into account the reasonable expectations of the public as to the standard of maintenance of the highway surface. A defect on a remote rural mountain road, which was a wholly unremarkable and commonplace feature of such a location, could in the ordinary course of human affairs be regarded as something that was not properly classified as a danger to the persons who were likely to use it. The judge also took into account the burden which a finding of dangerousness would impose on the authority in the light of Mills v Barnsley Metropolitan Borough Council. That was a relevant, indeed an obligatory, consideration. A balancing exercise is required and that is what the judge did.
35. As to the contention that on the Council's own approach the defect fell into Category 1 and was dangerous on that basis alone, the claimant faces two problems. First, the policy set by the Council of when it will intervene and take action is not determinative of whether the test of dangerousness is satisfied. Thus, in Esdale v Dover District Council [2010] EWCA Civ 409, Smith LJ said:

"The test of whether, in all the circumstances, the council has taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the council sets itself as a matter of policy. The test to be applied is an objective one. The question, in effect, is: does the judge, as the embodiment of the reasonable person, think that the council has taken such steps as are reasonable, in all the circumstances, to keep the visitor -- the claimant here -- reasonably safe? What the council sets as a policy is certainly not determinative, although I would not go so far as to say that it is irrelevant. One can immediately see that the council's policy could not be determinative. If the council had a policy that footpaths need not be repaired unless there was a defect of more than two inches, no one would suggest that, if that policy were followed, it could be said that the council had taken such care as was reasonable. Conversely, if the council wished to set a very rigorous policy in an attempt to provide a high standard for its visitors, it would not follow that the standard of what is reasonable must be set at the same level."

36. That was of course a case in relation to the duty of care under the Occupiers Liability Act but it seems to me a similar approach is appropriate for the question of danger under section 41 of the Highways Act.
37. Secondly, it was not in fact the policy of the council to take every 60 mm hole as falling into Category 1. That was not the test that Mr Williams applied. He had a rule of thumb but he also took into account all the circumstances. Appendix B of the code indicates that that is what it is appropriate to do. As the judge found, he did not treat the case as falling into Category 1 because he did not think that it did so.
38. Mr Moffat placed much reliance on the case of Devon County Council v TR [2013] PIQR 19. In that case the relevant defect was a rut, some 51 metres in length, in excess of 80 mm deep and of varying widths across its length by the side of a main road. At paragraph 9 of the decision, Lord Hughes of Ombersley who was sitting as a member of the Court of Appeal, said this:

"The judge's finding that the road was in places at least dangerous is implicit in several passages of her judgment... She was plainly entitled so to hold and there was little doubt about it on the facts. As a matter of abstract logic, I am content to accept the proposition of Lord Faulks QC for Devon that the fact that its highway staff would have regarded the defective road edge as a category 1 defect, according to their working manual and thus as requiring immediate attention on grounds of safety, does not of itself mean that the road was dangerous. It might theoretically be possible to postulate a case in which a defect met the Manual's definition of a category 1 defect yet there was no prospect of anyone being put in danger from it in the course of ordinary road use. However, it is not easy to imagine such a factual scenario and, on the facts of this case, the reason why the defect was category 1 was quite plainly because drivers might be put in danger by being thrown off course."

39. There is always a danger in taking statements from cases where the facts are markedly different and applying them to quite different circumstances. The circumstances in the Devon case are not comparable, not least because the nature of the defect and the situation in which it arose were markedly different, such that in that case there was little room for doubt that on the facts there was danger; and secondly, because in the present case, the Council did not in fact regard the facts as falling within Category 1.
40. There was some argument before the judge as to whether the angle at which the cycle entered the hole was such that there was a vertical edge overhanging an 80 mm drop. In respect of that the judge had before him a number of photographs showing a spirit level placed laterally across the defect, that is to say in a line across the width of the defect with a tape measure being used vertically, which revealed a depth of 80 mm or more from the underside of the spirit level to the surface of the ground below, such that there was a vertical edge at the side.
41. But there were no photographs showing the position as one entered the defect longitudinally if that is what one did. Mr Griffiths is most unlikely to have entered the hole at the same angle as the spirit level. He probably did not do so directly in line with the longitude of the road either but at an angle somewhere in between. Quite at what angle, and encountering what depth, and whether in the presence of what could properly be described as a vertical edge, it is difficult to say. The judge found that "the vertical edge or drop at the entry to or exit from the defect, as it would have been encountered, longitudinally, by the claimant cannot have been of the order alleged whether 100 mm or indeed 60 mm, or 80 millimetres (as opposed to the side edge of it)".
42. It does not seem to me that the determination of this case can depend on the angle of entry into or departure from the hole, or as to the extent of the vertical edge or drop, if any, at entry or exit. The judge's decision was that it was not reasonably to be expected that a cyclist would ride into the defect at all and that the defect was not one which the council should reasonably be expected to have guarded him against.
43. I find it impossible to conclude that the learned judge, whose careful judgment was written from a point of view of sympathy with the appellant, which I share, reached a conclusion which was simply not open to him. Accordingly I would dismiss the appeal.

LORD JUSTICE BURNETT:

44. I agree.