England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Sheffield County Court
His Honour Judge Robinson
3YS59477

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/02/2017

Lord Justice Jackson :

1. This judgment is in four parts, namely:

Part 1 – Introduction	Paragraphs 2 - 11
Part 2 – The facts	Paragraphs 12 – 21
Part 3 – The present proceedings	Paragraphs 22 – 27
Part 4 – The appeal to the Court of Appeal	Paragraphs 28 - 37

Part 1 – Introduction

2. This is an appeal by a highway authority against a decision that it is liable in damages to a person who tripped on a pothole in the road and fell to the ground, suffering injuries. The issue in this appeal is whether the district judge erred in holding that the highway authority had a defence under section 58 of the Highways Act 1980.
3. Mr Lee Crawley is claimant in this litigation and respondent in the Court of Appeal. Barnsley Metropolitan Borough Council ("the council") is defendant in the litigation and appellant in this court.
4. The road which is the subject of this litigation is Hill Top Avenue, Barnsley. It is situated in a residential suburb. Hill Top Avenue adjoins Wilford Road, where Mr Crawley lives.
5. The only statute relevant to this litigation is the Highways Act 1980 ("the 1980 Act"). Section 41 of the 1980 Act provides:

"(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."

6. 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 regards to the maintenance of the highway and that he had carried out the instructions."

7. A code has been prepared for the assistance of highway authorities in carrying out their duties under the 1980 Act. The code was compiled by a number of bodies concerned with road safety, including Department of Transport. That code contains helpful and well-informed guidance, but it has no statutory force. I shall refer to it as "The Code".
8. The Code contains provisions giving guidance on frequency of routine inspections for different categories of road. I need not linger on those provisions because there is no suggestion that they were breached in the present case. Paragraph 9.3.3 of the Code provides:

"The recording system should also provide for recording service requests, complaints, reports or information from users and other third parties. These may require immediate action, special inspection, or influence future inspection or monitoring arrangements. The nature of response, including nil returns, should also be recorded. All inspections should record as a matter of course: time, weather conditions, any unusual circumstances of the inspection and the person conducting the inspection."

9. Paragraphs 9.4.18 and 9.4.19 provide as follows:

"9.4.18 This Code defines defects in two categories, which correspond with those adopted in England by the Highways Agency (HA) in respect of motorways and trunk roads:

Category 1 – those that require prompt attention because they represent an immediate or imminent hazard or because there is a risk of short-term structural deterioration.

Category 2 – all other defects.

9.4.19 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…."

10. In Wilkinson v City of York Council [2011] EWCA Civ 207 the Court of Appeal reviewed the history and the operation of sections 41 and 58 of the 1980 Act in same detail. Toulson LJ gave the leading judgment, with which Lord Neuberger MR and Wilson LJ agreed. I readily accept Toulson LJ's judgment as accurately stating the law. I will not embark upon a similar exercise in this judgment. The present appeal is concerned with a narrow point, namely the adequacy of the council's system for dealing with reported defects in minor roads.
11. After these introductory remarks, I must now turn to the facts.
Part 2 – The facts

12. The council has classified Hill Top Avenue as a local access road. That is category 4(b), the bottom category in the council's Carriageway Hierarchy. This means no disrespect to Hill Top Avenue and its residents. It is merely an indication of the volume and character of traffic passing along the road.
13. Roads in category 4(b) are subject to annual inspection. The last routine annual inspection of Hill Top Avenue before the events in issue in this appeal was on 6^th September 2011. Mr Stuart Macey, a highway inspector employed by the council, carried out that inspection. He noted a number of defects in Hill Top Avenue. He reported that they required repair within a month. The council duly repaired those defects on 10^th October 2011.
14. On or before Friday 27^th January 2012, a new pothole opened up near the centre of Hill Top Avenue. The dimensions of that pothole are not in evidence. There is however a photograph of it. It is near the centre of the road. It clearly requires repair. It is not, however, unlike the sort of potholes which do from time to time appear in roads during the winter months, especially after severe weather.
15. At 4.20 pm on Friday 27^th January 2012, a member of the public telephoned the council to report the presence of potholes in Hill Top Avenue. An operative at the council's call centre made the following note of the call:

"Deep potholes from Hill Top Avenue leading on to Wilford Road. Resident said only seem to repair over original repairs to them. He wanted to know about resurfacing as said if they damage his car he will be claiming."

16. The call centre operative logged that note of the call onto the council's computer system and forwarded it to the highway inspectors. The council took no further action that day. The message simply sat on the council's computer system, or perhaps on a cloud somewhere, over the weekend.
17. On the evening of Saturday 28^th January 2012 the claimant went out jogging. On his way home he ran across Hill Top Avenue. Unfortunately he stepped in the pothole previously mentioned. He lost his balance and fell onto the road. As a result the claimant suffered injury to his left ankle.
18. On the morning of Monday 30^th January, Mr Macey went into the office as usual, unaware of the claimant's accident. He switched on his computer and read the message which the call centre had recorded on Friday evening. He hastily set off for Hill Top Avenue, in order to inspect the damage. He noted the pothole near the middle of the road. He duly reported the defect and said that it must be repaired within 24 hours.
19. The council's maintenance department received Mr Macey's report and made the necessary arrangements. On Tuesday 31^st January, the council's workmen filled and repaired the pothole.
20. Hill Top Avenue was safe once more, but that was not the end of the matter. The claimant was suffering considerable pain in his left ankle. He was unable to weight bear on the left ankle for ten days. He consulted his doctor and received treatment for ligamentous tenderness.
21. The claimant maintained that the council's negligence and breach of statutory duty had caused his injury. The council denied liability. Accordingly the claimant commenced the present proceedings.
Part 3 – The present proceedings

22. By a claim form issued in the Northampton County Court on 5^th November 2013, the claimant claimed damages against the council for negligence and breach of statutory duty. In his particulars of claim the claimant alleged that the council had been negligent and in breach of duty under section 41 of the 1980 Act in failing to repair the pothole before the evening of 28^th January 2012.
23. The council served a defence denying the alleged breaches of duty. The council also pleaded that it had a defence under section 58 of the 1980 Act.
24. The action came on for trial in the Barnsley County Court before District Judge Babbington on 29^th August 2014. The claimant gave evidence in support of his claim. The council called two witnesses. They were Mr Paul Tiggardine (Group Leader in the Network Resilience and Asset Management Team) and Mr Stuart Macey, the highway inspector who dealt with defects in Hill Top Avenue.
25. The district judge gave judgment orally, as is entirely appropriate in a case such as this. He held that the pothole in question was "dangerous and actionable" but that the council had a defence under section 58 of the 1980 Act. Accordingly he dismissed the claim.
26. The claimant was aggrieved by the district judge's decision. Accordingly he appealed to a circuit judge. His Honour Judge Robinson heard that appeal on 20^th March 2015, sitting in the County Court at Sheffield. He allowed the claimant's appeal and entered judgment for the council. I would summarise the circuit judge's reasoning as follows:

i) It appears from the evidence that the council operated a two-tier system in evaluating road defects.

"Only if the information comes from a member of the emergency services and the location of the reported defect is on the main road, outside a school or hospital or the like, is the complaint referred to the emergency standby team."

In other circumstances the complaint is logged onto the system and dealt with by an inspector in the ordinary way.

ii) This had the following consequence:

"A complaint made on Monday to Thursday from a member of the public would be considered by a Highways Inspector on the next day, but a complaint made on Friday would suffer a delay of at least two days before being dealt with – more over a bank holiday weekend."

iii) If it is reasonable to deal with complaints reported on Monday to Thursday on the very next day, there is no justification other than resource-based justification, for dealing with complaints made on Friday any differently.

iv) Shortage of resources is irrelevant when considering the adequacy of measures taken to secure the safety of the highway: see Wilkinson.

v) The council's staff should have been trained to evaluate reports from third parties about road defects, alternatively they should have been instructed to forward all such information to an "on-call" highways inspector. There is no evidence that the council gave to its call centre staff any such training or instruction.

vi) Therefore the council had failed to establish a defence under section 58 of the 1980 Act.

vii) It is uncertain whether the claimant would still have suffered his accident even if the council had taken the measures set out above.

viii) The district judge fell into error in holding that the entry in the council's call log on 27^th January "did not give rise to any necessity to go out straight away".

ix) Therefore the claimant's appeal was allowed and the district judge's judgment would be set aside.

27. The council was aggrieved by the circuit judge's decision. Accordingly it appealed to the Court of Appeal.
Part 4 – The appeal to the Court of Appeal

28. By a notice of appeal filed on 15^th April 2015 the council appealed to the Court of Appeal on a single ground. This was that the district judge was entitled to find as a matter of law that the council had established the statutory defence set out in section 58 of the 1980 Act.
29. Mr Patrick Limb QC, who appears for the appellant, submits that the circuit judge has imposed too high a duty on the council. There is nothing in the Code about training staff answering telephones to evaluate reports received. Any such duty would go far beyond what section 58 requires. The council here had a perfectly satisfactory system in place. They inspected Hill Top Avenue at proper intervals. Their inspectors went to view any reported road defects promptly and took appropriate action. In the present case Mr Macey inspected the pothole in Hill Top Avenue on the first working day after it was reported. The council effected repairs one day after that. The council thereby complied with paragraphs 9.3.3 and 9.4.19 of the Code. They did all that was required to establish a defence under section 58 of the 1980 Act.
30. Ms Kathryn Hayes, on behalf of the claimant, resists the appeal. She makes no criticism of the regime of routine inspections or of the classification of this road as 4(b). That was in accordance with the Code. Ms Hayes places reliance on paragraph 9.3.3 of the Code. She submits that the council should have had in place an effective system for evaluating and responding to reports of serious road defects. In the present case, it was unacceptable for the council to do nothing until Monday 30^th January 2012. The council's overall system was deficient. Therefore the council cannot make out a defence under section 58 of the 1980 Act.
31. The present appeal, unlike many of those concerning section 58 of the 1980 Act, raises no issue concerning frequency of routine inspections. It is focused more narrowly upon the council's system of responding to reported defects during the period between routine inspections. The council had in place a system for complying with paragraph 9.3.3 of the Code. The issue is whether that system was adequate.
32. The council's system, in essence, was this. If (a) the emergency services reported a serious defect in a road and (b) that road was in a sensitive location (e.g. a main road, or a road outside a school or hospital), then the call centre staff would refer the matter to the emergency standby team. That team would go to site and take any necessary action. In the case of any other reported defect, the call centre staff would log the report on the council's internal system for the attention of the highways inspectors. One of the inspectors would see the report and go out to inspect. In the ordinary course of events the inspector would go to site on the day after the phone call. If a weekend intervened, the inspector would go to site three days after the phone call.
33. Ms Hayes submits that the intervention of a weekend does not justify any delay in inspection. She points out that councils cannot rely upon lack of resources as justifying any shortcomings in their systems: see Wilkinson.
34. I readily accept that lack of resources is not a defence. On the other hand, the fact that most people do not work at weekends is a relevant circumstance, which the courts cannot ignore. That is how society is structured. Section 58 requires the court to have regard to "all the circumstances". A system whereby reported road defects are inspected on the next working day (or immediately in cases of exceptional urgency) is not a perfect one, but in my view it is a reasonable one. The Barnsley Metropolitan Borough Council put in place such a system in the present case, as the district judge has held.
35. I turn now to the telephone report in the present case. Mr Limb QC draws attention to eight features, which are significant. They are:

i) No report as to the actual depth of the pothole was provided – merely a subjective description.

ii) The defects had been previously repaired and thus were not new.

iii) The caller envisaged a long term "resurfacing" rather than emergency repair.

iv) The caller did not report any damage or injury caused by the defect.

v) The caller said that if damage was caused to his car he would make a claim. There was no suggestion of any risk of personal injury.

vi) The defect was on the carriageway, not on the footpath.

vii) Only one caller reported that defect in a residential area.

viii) The road was sufficiently minor to justify an annual inspection only. (There was no appeal against the district judge's finding in that respect).

The telephone report clearly called for action. But, with the utmost respect to those who take a different view, this was not a matter which called for an overnight response. Nor did it necessitate urgent attendance by the emergency standby team during the weekend.

36. The council responded to that report by inspecting Hill Top Avenue on the next working day and repairing the pothole on the day after that. The district judge concluded that (in the language of section 58) the council took "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". In reaching that conclusion the district judge was carrying out an evaluation or assessment. That is the function of the first instance judge. In my view the district judge was entitled on the evidence to reach the conclusion which he did.
37. In those circumstances the circuit judge was not entitled to overturn the district judge's decision. In my view this appeal should be allowed and the claimant's claim should be dismissed.

Lord Justice Briggs :

38. I have reached the opposite conclusion, largely along the same lines as the reasoning of HHJ Robinson, who was in my view right to allow the appeal from DJ Babbington. I acknowledge at the outset that the question whether the council had a s.58 defence was a multi-factorial question of fact and law, to which the answer given by the first instance judge deserves respect, and from which an appellate court should only depart if satisfied that it was clearly wrong, or if there is some serious defect or lacuna in the reasoning which requires the evaluation to be re-made afresh.
39. The starting point is that this pothole was, as the trial judge found, in fact a Category 1 defect within the meaning of the Code. This was because its presence represented an immediate or imminent hazard. Once recognised as a Category 1 defect on inspection, it needed immediate attention, either by immediate repair or by being rendered safe by the immediate placing of a notice, by fencing or coning, followed by repair as soon as possible. That it required immediate attention was eventually accepted by the council's inspector, Mr Macey, in cross examination.
40. The critical question is whether the report made to the council on the Friday afternoon, in the terms described by my Lord at paragraph 15 above, gave rise to a real risk that the pothole was a Category 1 defect, sufficient to require some response on the part of the council by way of evaluation, either remotely (for example by asking questions of the caller) or by urgent inspection. In my judgment it clearly did. The caller described "deep potholes" in terms which suggested a risk of causing damage to a vehicle if the caller drove over them in the future. Once read by Mr Macey on the Monday morning, it was sufficiently serious to call for inspection by him on the same day.
41. The trial judge dealt with this question in two short sentences. After reciting the claimant's submission that the telephoned report called for immediate inspection, he said:

"We are getting into a very hypothetical situation. The entry in the complaint log on 27 January does not give rise to any necessity to go out straightaway."

42. Making every allowance for the pressures on the District Judge, giving an ex tempore judgment at the end of a fast track trial, this issue deserved more than just an unreasoned answer to a supposedly hypothetical question. It was not hypothetical at all. The defect was in fact reported exactly as stated in the call log. Judge Robinson's much deeper analysis, based on the largely uncontentious evidence before the trial judge, gave the critical question the balanced analysis which it needed. It demonstrated that the council's arrangements for responding to reports of highway defects out of hours and at weekends were such that reports by people other than the emergency services were, generally, just logged to await review by highway inspectors during the next period of working hours, regardless whether their terms were (as here) such as to disclose a real risk of the existence of a Category 1 defect. I say 'generally' because the evidence suggested that a report of an extremely large or deep hole might be passed to the weekend on-call team, although not apparently if the reporter even said that actual harm or injury had been incurred.
43. There was some discussion during the hearing of the first appeal and in this court whether a system which had led to an inspection by the weekend on-call team, on the Saturday, would have prevented the claimant's injury, if the pothole was repaired only on the following day, i.e. the Sunday. But a s.58 defence is not concerned with questions of causation in that way. A system for responding out of ordinary working hours to reports of potentially serious defects may be reasonable even if it might not, on particular facts, have prevented the injury. In my judgment the council's system failed the s.58 test not because, had reasonable steps been taken, the injury would definitely have been prevented. It failed because the system suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by someone with the requisite skill out of working hours, unless they came from members of the emergency services. That was the key to Judge Robinson's reasoning, and I agree with him.
44. The evidence at trial did not in fact show whether the pothole which injured the claimant continued to represent a danger from the Monday, when it was inspected, until the Tuesday, when it was repaired. It may or may not have been fenced off, or coned. If not, then in accordance with the Code, it should have been, once recognised as a Category 1 defect by reason of the immediate or imminent hazard. So the causation based analysis does not in my view offer a defence to the council even if, contrary to my view, it would be appropriate to analyse the facts in that way for s. 58 purposes.
45. My only departure from Judge Robinson's reasoning is that I would not regard the need for a less well staffed system for responding to reports of highway defects out of working hours as merely a matter of resources, and therefore legally irrelevant under s.58. It may be that the point was dealt with in that way in the evidence, but I agree with my Lord that the need for staff to take time off, mainly at weekends, is a feature which goes beyond mere resources. Nonetheless I would not regard the reasonable need to make out of hours arrangements for such reports to be dealt with by a smaller team as making it reasonable to adopt a system which simply failed to make any out of hours evaluation at all of reports of potentially serious and dangerous defects, other than those reported by the emergency services, or those where the defect is so obviously dangerous as to need no evaluation at all.
46. I would, accordingly, dismiss the appeal.

Lord Justice Irwin :

47. At the time of the appeal hearing before HHJ Robinson, the court had not only the witness statements of the two witnesses who had given evidence before DJ Babbington, but a transcript of their evidence. HHJ Robinson considered the evidence with care. In the course of cross-examination, Mr Tiggardine, Group Leader, Network Resilience and Asset Management for the Appellant Corporation, explicitly agreed that the arrangements affecting late Friday and the weekend were a matter of resources:

"Q But for resource reasons, you choose not to operate a team on Saturdays and Sundays?

A That is right, yes."

It is common ground, as Jackson LJ has pointed out, that lack of resources cannot justify a failure to provide a reasonable system.

48. I am in agreement with the reasoning of Briggs LJ. It may be perfectly reasonable to have a reduced staff and activity over a weekend, but there must be some means of responding quickly to complaints from the public of serious and dangerous defects in the road.
49. I too would dismiss the appeal.