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Case law update: Highways

Trip – kerbstone - negligence – s.41 Highways Act 1980

Atkinson v South Tyneside Council - 16.11.12 - South Shields County Court

Facts – a teenager tripped on a kerbstone whilst on an evening walk with her partner. Neither looked at the exact kerb stone in the immediate aftermath as they were more concerned with any potential harm caused to their unborn child. The partner went back to the road the next day and identified a defective kerbstone. The Claimant contended that the system of inspection was clearly inadequate as the accident occurred three months after the most recent inspection – carried out on 10.2.08 at which a defective kerb was recorded and a repair order raised. At the post accident inspection on 22.7.08, a further defect in the vicinity of the accident locus was noted. The Defendant argued that the defect was likely to have been caused by vehicular traffic.

Findings – the court found that the local authority had a s.58 defence, as it was satisfied with the Defendant's inspection regime and its effective system of recording any works and/or inspections that were carried out. Further, the court was not satisfied that the Claimant fell on the damaged kerbstone which she had identified, although the judge believed that the accident otherwise occurred as she described on balance of probability.

Comment – the case highlights the importance of a local authority having in place a clear system of inspection and being able to produce the relevant documents to support s.58 defence

 

Road Traffic – damage to vehicle – traffic calming bells
Williams v Reading Borough Council - 16.11.12 - Reading County Court

Facts: The Claimant alleged that the left rear wheel of his vehicle was damaged by a metal bell which formed part of the traffic infrastructure on an approach to a roundabout. There were a number of traffic calming measures in place: a 20 mph speed limit, speed humps and another sign saying that the maximum width of vehicles which could pass through was 6 foot 6 inches. The final aspect of the traffic calming measures were two low level metal bells positioned on the outside of the lane of traffic.

The Claimant alleged that the width between the two metal bells was in fact less than 6 foot 6 inches. He went on to say that he relied on the sign and the only reason there was any damage was because the gap was not 6 foot 6 inches. The Defendant did not deny that the base between the bells was less than 6 foot 6 inches (it was approximately 6 foot 3.5 inches). However the bollards did taper back from the base. The Defendant contended that the purpose of these bells was to align any vehicles that had not approached the area correctly by notifying them that they were too close to the kerb.

Findings:

  • The use of the bell bollards could not be a breach of duty. The issue was the fact that the bell bollards restricted the width to less than 6 foot 6 inches. Even if the Court did decide that the Council had done something wrong, the Claimant had to persuade the Court that this caused the damage for his claim to succeed.
  • The Claimant said that he caught the wheel on the bell bollard, realised something was not right, but could not do much about it. Whatever happened, by virtue of the fact he continued to scrape along the kerb he must have been too close to it.
  • When the Claimant caught the bell, it was serving its proper function of alerting him to the fact that he was too far over.
  • The bell itself did not cause any damage. A substantial part of the damage if not all of the damage was a result of the wheel scraping along the kerb, which at that point was 6 foot 6 inches wide. The Claimant had lined his car up incorrectly and the damage was not caused by the confusion about the width of the gap.

Comment: The Network Manager for the Defendant produced clear and coherent evidence as to the detailed considerations that went into the layout of this area and the purpose of the combined traffic calming measures. Of particular importance was the detailed explanation of the purpose of the bells in alerting misaligned vehicles. In any event, the judge focused on the engineering evidence of the Claimant which highlighted that the damage suffered along a substantial section of the rim of the wheel could not have been sustained by the bell. The area had received much local press attention with the introduction of cameras in the bus lane next to the lane where this occurred which no doubt spurred on the Claimant in his claim. The common sense approach of the Judge was welcomed.

 

Trip – pothole – negligence - s.41 Highways Act 1980
Smith v Hartlepool Borough Council - 16.11.12 - Sunderland County Court

Facts - On the evening of 21st December 2008, the Claimant was accompanying her young son on a walk to look at Christmas Lights and decorations near to her home. The claimant picked up her son in order to cross the carriageway on Bournemouth Drive, Hartlepool and whilst crossing the carriageway, she tripped over a pothole in the carriageway and fell suffering injury.

The claim was brought in negligence, nuisance and breach of statutory duty pursuant to s.41 of the Highways Act 1980. Liability was denied by the defendant authority, relying upon the s.58 defence i.e. a reasonable system of maintenance.

The best evidence before the Court on the condition of the defect at the time of accident was a photograph taken by the Claimant's husband 2 days after the accident. No measurements were taken and neither the trial judge nor the Defendant's inspector could estimate the size of the defect, however the inspector conceded that he would have ordered a repair had the defect been present at his inspection.

The carriageway in question was subject to routine detailed inspections at intervals of 6 months, greater than the recommendations of the Code of Practice for Maintenance Management, which suggested annual inspections for that category of carriageway. It was noted during the course of an inspection conducted in January 2008 that several prior repairs had deteriorated and required further remedial works and as a result a rating assessment was requested by the Defendant's highway inspector. The highway authority included Bournemouth Drive, along with numerous other carriageways within a five year programme of planned resurfacing works according to priority need. There had been a number of complaints relating to potholes in the vicinity of the accident between January 2008 and the date of accident. It was the Defendant's case that all complaints were investigated and defects rectified.

The claimant's case was premised largely upon two points:-

  • The Carriageway was obviously in a poor state and resurfacing work should have been carried out sooner.
  • The Defendant was unable to satisfy the Court that at the time of an ad-hoc inspection in October 2008; the defect was either: a) not present, or; b) was present but not repaired.

On the first issue, the Defendant case was that whilst it was accepted that the condition of the carriageway was not aesthetically pleasing, the Defendant had discharged the burden under s.58 by carrying out inspections and ordered repairs where necessary in addition to investigating and responding to all complaints received from members of the public, On the second issue, the judge found that Defendant's case was weakened by the fact that the locations of defects reported could not be precisely identified, however the Defendant's inspector said that all actionable defects along the entirety of Bournemouth Drive ( approximately 150 metres in length) were identified for repair and he would have marked the defects in question with spray paint to assist the repair operatives.

Findings - The trial judge found that the defect was such as to be in breach of s.41, having regard to a number of factors including the Claimant's photographs, the residential character of the surrounding area and the likelihood that the carriageway would experience foot traffic.

On the issue of the s.58 defence, the Judge took the view that the Defendant knew that the carriageway was in a deteriorating condition as far back as January 2008 and ought to have acted upon that knowledge and carried out resurfacing sooner. The judge did not accept the Defendant's submissions concerning finances / resources and the priority criteria as a consideration in this case, the condition of the carriageway was, in the Judge's view, plainly dangerous and should have been rectified and on that basis Judgment was given in favour of the claimant.

The views of the trial judge on the issue of financial resources would on first glance appear to echo the decision of the Court of Appeal in Wilkinson v City of York Council (2011), the essence of that decision being that allocation of budgets was not a relevant factor for a highway authority seeking to rely upon the s58 defence. It should be noted however that in that case York City Council had reduced the frequency of inspections below the recommended frequency due to budgetary constraints whereas Hartlepool Borough Council inspected at frequencies over and above that recommended by the Code of Practice; resources were an issue only where priority need for resurfacing works was concerned.

Comment - There are potential implications for local authorities who elect to carry out repeated reactive maintenance rather than seek to deal with an underlying problem with a risk that a Court may find that the measures taken are not reasonable within the meaning of s.58 and that the authority could and ought to have done more.

 

Trip – defect – s.41 Highways Act 1980 – evidential issues 
Ansari v London Borough of Ealing - 27.09.12 - Kingston-upon-Thames County Court

Facts – On 14 June 2009 the Claimant was walking along South Ealing Road when she tripped over a defect sustaining personal injury.

From the outset there were a number of problems with the Claimant's claim. First, she had to seek permission of the Court on the morning of her trial to amend her Particulars of Claim. The road she described as being the site of her accident was in fact incorrect. Her accident allegedly occurred a few roads away. She also sought permission to plead that the material used by the Council was of an inferior type which lent itself to easy wear and tear and general damage. Permission for this amendment was denied.

Another difficulty the Claimant faced was that her direction of travel was against the trip. The Claimant had been asked on three separate occasions to mark exactly where she fell and her direction of travel and she gave two separate locations. However, the direction of her travel remained the same and this was against any logical trip. The Defendant therefore took the view that she could not have tripped as alleged and from the outset invited the Claimant to withdraw her claim.

The Defendant's evidence was not without its own difficulties. The highway inspector in question had left the London Borough of Ealing in June 2012 and he was unwilling to give evidence. The Defendant therefore sought witness evidence from his then supervisor and a hearsay notice was served in respect of the highway inspector's evidence just days before the hearing. The Defendant's position was not helped by the general state of the highway which the Judge described as being "aesthetically unpleasant". The area was full of cracked paving slabs which the Defendant speculated was due to damage caused by deliveries to a nearby pub.

Findings – judgment for the Defendant:

  • The photographs showed an area that was in parts an aesthetically unpleasant area but not to the extent to be defective within the meaning of s.41.
  • The Claimant had indicated the site of her accident in two different places and the court accepted the Defendant's argument that the direction in which the Claimant was walking meant it was less likely that she would trip and fall.
  • The area of cracked paving was extensive and arguably the Claimant ought to have taken more care and seen that the pavement was uneven.
  • The Claimant had failed to make out a breach of s.41 but if there had been a breach, the Defendant had a s.58 defence as the Defendant had a reasonable system of inspection. The area was inspected monthly because it had a heavy footfall.

Comment - The judge remarked that the highway inspector had not given a good reason for not attending Court and that his evidence would have been helpful. Notwithstanding this, she accepted the evidence of his supervisor who came to the same conclusion as the highway inspector in that whilst the pavement was cracked and ugly it did not represent a dangerous defect which required repairing. She reminded the Court that the duty of a local authority was to take reasonable care to keep the highways safe. Finally, she felt that had she found a breach of s.41, the Highway Inspector, could not have missed a serious defect because the pavement was so extensively unsightly.

For further information please contact Hazel James, Associate on 0207 645 9514 or at hazel.james@dwf.co.uk.

 

Trip – kerbstone – s.41 Highways Act 1980 – inconsistent evidence
Balsom v London Borough of Havering - 12.12.12 – Mayor's & City of London County Court

The Claimant alleged that she had tripped on a defective kerbstone sustaining injury. The defect complained of tapered from approximately 31mm to 10mm across the width of the kerbstone in question. The overall length of the gap complained of was 200mm tapering from nothing to 31mm.

It was the Claimant's case that whilst walking along the footway she sustained injuries when she tripped over the defective kerbstone and fell onto a lamppost. The Defendant denied liability under s.41 of the Highways Act and relied upon the s.58 defence.

Findings - Judgment for the Defendant

The Claimant's evidence was found to be inconsistent and the language she used throughout the case and when giving evidence was "less than precise".

Throughout the claim the Claimant had given various versions of how the accident had occurred.

Shortly before trial she changed her case to allege that she was injured when crossing the road when she tripped on the defective kerbstone when stepping up onto the footway.

The Claimant was unable to prove upon what she had tripped and how the accident had occurred. The Court considered Mills v Barnsley Metropolitan Borough Council and found that the defect complained of was unremarkable and did not present a real source of danger.

Comment - This case reaffirms the cases of Mills v Barnsley MBC (1992) and Galloway v London Borough of Richmond Upon Thames (2003) confirming that it was reasonable for the Court to draw a distinction between kerbstones and paving slabs when considering the issue of dangerousness. A paving slab in itself highlights a difference in levels and when negotiating such pedestrians must have higher regard for their own safety.

This case largely turned upon the Claimant's inconsistencies and arguably poor preparation of her case. It was necessary at trial to review the numerous versions of the accident which the Claimant had presented (from the initial accident report form completed to the amended witness statements served the day before trial). Highlighting the numerous inconsistencies proved fatal to the Claimant's case.

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Hazel James

Associate

I deal primarily with railway work, including working with British Rail/Network Rail on asbestos claims, vibration white finger claims and occupier liability claims.