Suitability and Work Equipment: a New Test and an Even Greater Burden on Employers? - Jack Harding, 1 Chancery Lane

19/10/13. On 23^rd April 2013 the Enterprise and Regulatory Reform Act received royal assent. One of the most controversial changes that it will introduce is an amendment to the Health and Safey at Work Act 1974, the effect of which will be to abolish civil liability for breach of the various ‘six pack’ regulations which govern employer’s liability. The regulations can still be relied upon as evidence of a failure to exercise reasonable care, but the burden will rest with the injured employee to prove that the accident has been caused by the negligence of the employer.

The difference between liability for negligence at common law, and the stricter requirements of regulations emanating from Europe, was brought into sharp focus by the recent court of appeal decision in Hide v The Steeplechase Company (2013) EWCA Civ 545. The claimant was a self-employed jockey. He jumped the first hurdle at Cheltenham racecourse when his horse stumbled and fell. It careered sharply to the right, which caused Mr Hind to fall, hit the ground and roll sideways into one of the upright posts of the guardrails surrounding the track.

The Defendant was able to produce quantities of evidence that the track had been audited and inspected by relevant regulatory bodies and found to be of the highest standard in terms of safety. Indeed, the Court of Appeal commented that the course had received consistently ‘glowing recommendations’ and that no concerns had ever been raised about the safety of the fencing or its proximity to the hurdle.

However, the Claimant relied upon regulation 4 of the Provision and use of Work Equipment Regulations 1998. The argument, in simple terms, was that, applying Robb v Salamis (2007) ICR 175, work equipment which might foreseeably cause injury was not suitable. Accordingly, since the fence and hurdle were work equipment (a point which was not appealed) and since it was foreseeable that a rider might fall off a horse whilst negotiating a hurdle and strike the fence, suffering injury, the equipment was therefore unsuitable.

The trial judge found that the Claimant bore the burden of proving that injury was foreseeable. He held that no accident had ever taken place before, that this accident occurred in a truly bizarre fashion, the risk of injury and falling was inherent in horse-racing and it was not reasonably foreseeable that the Claimant would suffer injury in the way that he did.

On appeal, the Court of Appeal reiterated that it was irrelevant that the precise mechanism of the accident was not foreseeable: only foreseeability of some injury was necessary. This was a point that the House of Lords had already emphasised in Robb v Salamis and, to this extent, the judgement takes the law no further. However, the Court went on to find, after a careful analysis of the Work Equipment Directive, which implements the 1998 Regulations, that:

1) Once the Claimant shows that he has suffered injury as a result of contact with a piece of equipment which may be unsuitable, the burden shifts entirely to the Defendant.

2) The Defendant can only escape liability by proving either that the accident was due to unforeseeable circumstances beyond its control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part.

Somewhat bizarrely, therefore, the Court of Appeal has brought the fault of the employer back into the equation under Regulation 4 (whereas previously only foreseeability was relevant). However, at the same time, it has set the hurdle (no pun intended) so high as to make it extremely difficult, if not impossible, for the employer to discharge the burden in the vast majority of personal injury claims.

On the facts of the case, the racecourse had not shown the accident fell within either of the narrow exceptions above and liability was therefore established.

The decision in Hide will no doubt be cited, by proponents of the new legislation, as a fine example of the reason that change is required. The judge at first instance, whose decision was overturned, regarded the Claimant’s arguments as demonstrating “the relentless logic of the personal injury lawyer”. The Court of Appeal plainly had some sympathy with this position but concluded that the Regulations simply “give rise to a form of liability which is a stricter liability than at common law” It will be interesting to see what extent the same case would be decided differently after the new legislation comes into force.

Jack Harding
1 Chancery Lane

Image ©iStockphoto.com/DNY59

Case Managers and Accreditation: The Current Situation - Jan Harrison, Joanna Collins & Niccola Irwin, Harrison Associates

18/10/13. The authors, senior occupational therapists and case managers with Harrison Associates, consider the need for accreditation of case managers in the United Kingdom. They look at the evolution of the role of case manager, the role and function of a case manager, the current lack of a formal accreditation regime and conclude that formal accreditation is something that should be encouraged and welcomed.

Introduction

Case management has a relatively short history in the United Kingdom with services as yet unregulated. Case management cannot be correctly described as a profession but is working steadily towards this status. Indeed “case manager” remains an unprotected title and the professional status of case managers working with clients following catastrophic or complex injuries rests upon their existing qualifications in other health fields.

The difficulty in defining the broad remit of case management finds a parallel with a similar attempt to define “rehabilitation”. It is from the broad perspective of rehabilitation as a response to injured individuals that case management emerges. The Case Management Society UK (“CMSUK”) defines case management as:

“a collaborative process which assesses, plans, implements, co-ordinates, monitors and evaluates the options and services required to meet an individual’s health, care, educational and employment needs, using communication and available resources to promote quality cost effective outcomes.”¹

In this article, we first consider the historical background for the current situation with regard to the standing of case management in the United Kingdom. We discuss the existing professional status of the individual case manager who works with clients following catastrophic and complex injuries. We appreciate that there are many different types of case management but this is the work that we know and undertake ourselves at Harrison Associates. We then outline existing opportunities for the accreditation of the company providing case management services. The organisations that exist to represent case managers are continually developing pieces of work that can help to establish better structure for the case management field. Included in this is recent research conducted by CMSUK concerning professional recognition, registration and educational pathways for case managers. This important research is summarised as part of our consideration of the future of case management in the United Kingdom.

History and context

Case management has been known for many years longer in other countries such as the United States, Australia and Sweden, where there are differing health services. Case management began slowly in the United Kingdom, mainly through health professionals becoming involved in helping claimants undergoing a compensation claim. In common with the emergence of other health professions here, case management began to organise itself by responding to a need for networking and communication with others practising the same work, before gradually building membership groups who then recognised the necessity to start to codify the nature of the work. Over time, these groups expanded their membership, and began to develop committees, boards and subgroups able to focus on specific issues of interest or concern to members. Currently the main membership bodies which represent and support the practice of case managers are the British Association of Brain Injury Case Managers (“BABICM”), the Case Management Society UK (“CMSUK”) and the Vocational Rehabilitation Association (“VRA”) all of whom are involved to greater or lesser degrees in developing guidelines, standards and latterly, codes of ethics.

There are companies who use the title “case manager” for those without previous healthcare qualifications who work with clients with minor injuries. The title is also used loosely within some mainstream health and social care provisions where a particular professional acts as a care coordinator or key worker. There are other anomalous usages of the title and the inclusion or otherwise of those who use this designation in various other fields may become moot issues should the title of case manager become protected. Despite this, protection is necessary for the safeguarding of the vulnerable clients with whom most case managers work.

Case managers working with clients following catastrophic and complex injury come from diverse health professional backgrounds, although the majority are from the occupational therapy, nursing and social work professions. Within the profession of occupational therapy, for example, case management falls under the broad description of an area of “extended scope of practice”.² Each professional body has its own existing standards, and the professionals are required not only to work to those standards but to be registered with the relevant regulatory body (Health and Care Professions Council for occupational therapists and other health professionals, the Nursing and Midwifery Council for nurses, and the General Social Care Council for social workers) to be able to practice in the United Kingdom. The standards and guidelines written so far for case managers are drawn from the spirit of these existing professional standards, and in fact the CMSUK Standards were based on those of the College of Occupational Therapists. BABICM Standards and Guidelines is a set of advice written specifically for case managers working with clients following acquired brain injury. However, there is no regulatory body with whom the case manager can officially register or to whom they are accountable as a case manager.

The individual case manager

The independent status of case managers is key within injury cases, and their professional background is considered to underpin and inform their judgement. Most of the various professional bodies from which case managers come implement a continuing professional development framework with expectations that the individual health professional takes responsibility for ensuring their practice is in line with current knowledge and trends particular to their profession. There are, however, many skills and knowledge areas that are specific to case management and currently gained only through mentorship, supervision and experience within the field. The authors understand that BABICM has formulated competencies for case managers working with clients with brain injury, and this is a welcome start to the defining of the role and knowledge base of those practising in the field. CMSUK has developed a Continuing Professional Development programme to help case managers establish their credentials and to encourage thoughtful collation of their experience.³

There is a paucity of training specifically for case managers with professional backgrounds who wish to pursue a higher level of qualification, although some short courses at varying academic levels are available. For the most part, however, case managers have to rely on finding their own ways of gaining skill, usually by working with other, more experienced case managers within an established company. There can be many negative consequences for clients, and commissioners, if the case manager proves to be unskilled and ineffective, as many have learned to their cost.

Until qualifications specific to case management become commonplace, it is incumbent upon the purchaser of case management services to ask those questions which identify whether an individual case manager is suitable to manage the case in question. In some instances, perhaps more so if a case manager is working independently as a sole trader, it would be fair to warn, “buyer beware”. After viewing the case manager’s CV and terms and conditions of trading, the next step would be to check their current professional registration. It would be helpful to ask the potential case manager if they work within a framework where they set goals for rehabilitation and implementation of support for the client. In discussion it should be possible to ascertain whether a case manager practises in a manner which is client-centred in principle.

The case management company

In terms of reputable case management companies, there is a move towards companies in the United Kingdom seeking accreditation. We acknowledge that at this time for most companies in this relatively new field there will be a period during which accreditation is being sought but has not as yet been awarded. But without case management specific accreditation in the United Kingdom, where do case management companies turn to seek such recognition of good practice standards?

Case management for catastrophic and complex cases is now considered an activity akin to rehabilitation and certainly espouses the same core principles. It is natural, therefore, when first seeking an appropriate accreditation or quality mark to look to the world of rehabilitation for this.

One of the first pieces of work for the newly established United Kingdom Rehabilitation Council (“UKRC”) was to establish broad standards of service. The UKRC published their Rehabilitation Standards in 2009 aimed at educating commissioners and service-users in helping them to choose an appropriate rehabilitation service.⁴ These standards formed the basis for the British PAS150⁵ code of practice for rehabilitation services. Although both set out good practice for rehabilitation services, neither of these are regulatory standards, or specific to the practice of case management.

Quality marks such as ISO 9001 (“International Standards Organisation”) reward organisational success through the lens of excellence in business practices. The organisation describes ISO 9001 as using:

“generic management system standards ... the same standard can be applied to any organisation, large or small, whatever its product or service, in any sector of activity, and whether it is a business enterprise, a public administration, or a government department.”⁶

As such they use a model suitable for business systems accreditation and do not use measures specific to rehabilitation or case management services. The Care Quality Commission (“CQC”) is known to many and is a regulatory body for health and social care services in England to ensure they meet prescribed standards.⁷ Again, these standards do not address the broad range of activities which fall within the scope of case management.

The Commission on the Accreditation of Rehabilitation Facilities (“CARF”) is an accreditation body with an extensive and growing international remit.⁸ As such it is being looked to as a suitable quality assurance framework for case management companies and their services. The standards match the functions of the case management company more closely in that they focuses on clinical and rehabilitation activities in addition to solid business practices. It may therefore be a preferred framework for case management companies in the United Kingdom.

CARF certification is awarded on the basis of the principles of progress in rehabilitation. It contains standards in overall business practice, case management, medical rehabilitation and specific categories for those working with children or working with clients following spinal cord or brain injury. The function of the audit processes, once implemented, is to sustain a quality culture within the organisation while clearly expressed standards provide the measure by which successful implementation of these processes are judged. Demonstration of compliance is not the primary intention of these checks and balances, but rather the establishment of continuous quality improvement sustained over the period between the external audit events. At the outset the requirements central to the accreditation process will necessitate a certain amount of reorganisation and restructuring of service delivery within a company. This can seem a daunting, expensive and time consuming prospect for the typically small service provider but the benefits of implementing CARF accreditation and the ensuing quality outcomes are well documented.⁹

Many case management companies provide additional services. For example, these may include expert witness services, therapy services, or in-house employment of carers for both case managed clients and other customers including state run facilities. The range of services offered affects the type and level of accreditation sought. Thus a company that specialises in providing case management as an adjunct to care worker provision is initially likely to register and seek accreditation from a body such as the CQC. Indeed, eventually, a company may register with more than one accreditation body in order to reflect the range of services offered.

There is considerable variety among companies offering case management services and accreditation is not yet in progress for most of these. We consider that in the meantime there should be existing quality oversight in any such company and suggest the following guidance for purchasers as to the hallmarks of a bona fide company. At core, whether accredited or not, the company should engage professionally able case managers and work within an authentic company structure based on sound principles of rehabilitation. The UKRC provides its online members with written guides for purchasers and consumers of rehabilitation services.¹⁰ Beyond these more general standards the service user and commissioner should expect there to be a culture of proactive case management including regular and clear communications, client-centred practice, and achievable goal setting with financial transparency. It is clear that some case managers have greater experience than others and in the absence of a specific case management qualification it is reassuring for a purchaser to know that a case manager has access to regular supervision by seniors and peer support. It is also important for there to be redress and a structured format for feedback or complaint for the service user or commissioner if there is a problem. It is also possible to check the company registration to verify their bona fide status with Companies House.

The future

Case management services remain unregulated and this is a situation that will need to be remedied in the coming years. It is a constant complaint from commissioners that it is difficult to identify case managers who can be relied on to do the right thing, in the right way, at the right time. At present the whole field tends to rely on “who you know” and who has been tried and tested in the past. If problems do occur, there is no system for deregulating a case manager who is free to continue bad practice. Naturally it takes time and broad consultation to establish how the regulation of the industry might be achieved. It is heartening that several companies are exploring accreditation. There are, however, other elements in the establishment of a new profession, and formal registration has to rely on there being agreed criteria for good practice, a consensus on the knowledge base, and a way of recognising that a certain level of skill has been achieved. This requires a designated educational framework or formal pathway, full registration with a regulatory body rather than simply membership of an organisation, and the recognition and protection of title.

Recent research has been completed by CMSUK exploring the need for and the nature of a formalised educational pathway through case management.¹¹ The research was based on the belief that this would underpin the other requirements for the affirming of professional standing.

An online survey was carried out with a mix of providers and commissioners of case management services with a greater number of the former.¹² 95 per cent of respondents had a professional qualification and a high proportion work in the private sector. The responses indicated that professional recognition, registration and qualification was supported. A significant majority agreed that an accredited pathway for case managers was needed. 53 per cent of respondents agreed that a specific case management qualification was necessary, although there was more concern about this amongst the longer standing practitioners, an understandable response from those who may be worried about having to sit exams to practice in a field in which they have worked successfully for many years. It is clear that case managers themselves wish to be more formally recognised and have some form of control in their professional status.

There were further details mentioned in this project concerning the implementation, scope and content of an educational pathway for case managers, and further debate around these issues will be forthcoming. It would seem from the tenor of this research that the development of an academic, clinical training for individuals to become case managers without necessarily previously having a professional qualification is unlikely to be a priority. It is more probable that the main focus will be on the expansion and formalisation of courses and in-service training for those who have an existing professional background and experience. The recommendations from the research raise more questions as to the model to be used for defining case management as a whole. Clearly it will be essential to explore and debate the nature and parameters of the emerging profession of case management before establishing a coherent educational pathway. Further investigation into how other countries have fared with this endeavour is recommended. The findings from the research are currently on the CMSUK website.¹³ The Board of CMSUK has recently agreed that this important work should progress based on the recommendations, and for the committee charged with the work to include a full range of stakeholders.

The field of case management looks forward to the time when those seeking such services for the injured client can be reassured that a case management company has been through a rigorous accreditation process and secured a meaningful quality mark, and that individuals working as case managers are thoroughly trained and supervised and operate within a strong professional structure. This extends beyond those case managers working with clients involved in a compensation claim, reaching to the widest remit of this rapidly developing field, to ensure best practice in supporting and protecting vulnerable clients to achieve better outcomes and live their lives to the fullest.

1 Case Management Society of the UK (“CMSUK”), Standards of Practice (Reading: CMSUK, 2007).

2 College of Occupational Therapy (“COT”), Briefing 14: Extended Scope Practice (London: COT, 2009).

3 Case Management Society of the UK (“CMSUK”), 2011, CPDoL Launch at http://www.cmsuk.org/NewsItem.aspx?NewsID=249 [Accessed July 29, 2013].

4 United Kingdom Rehabilitation Council (“UKRC”), Rehabilitation Standards: hallmarks of a good provider (London: UKRC, 2009) at http:/ /member.rehabcouncil.org.uk/UKRCMember/secure/Downloads.aspx [Accessed July 29, 2013].

5 British Standards Institute (“BSI”), PAS 150 Providing Rehabilitation Services: Code of Practice (2010).

6 International Standards Organisation (“ISO”), Discover ISO: What’s different about ISO 9001 and ISO 14001? (2012) at http://www.iso.org/iso /about/discover-iso_whats-different-about-iso-9001-and-iso-14001.htm [Accessed July 29, 2013].

7 Care Quality Commission (“CQC”), The Scope of Registration (London: CQC, 2009).

8 Commission on the Accreditation of Rehabilitation Facilities (“CARF”) (2012) at http://www.carf.org/Providers/ [Accessed July 29, 2013].

9 W. L. Nicklin, T. McLellan and J.A. Robblee, “Aim for excellence: Integrating accreditation standards into the continuous quality improvement

framework” [2004] Healthcare Quarterly vol.7 issue 4, 44–48, V. L. Ripley, Fostering an Environment of Continuous Quality Improvement. Research paper (Canda: Royal Roads University Victoria, 2007).

10 United Kingdom Rehabilitation Council (“UKRC”), PAS 150—Groundbreaking specification for rehabilitation service providers is launched (London: UKRC, 2010) at http://member.rehabcouncil.org.uk/UKRCMember/Secure/NewsDetail.aspx?ID=47 [Accessed July 29, 2013].

11 Case Management Society of the UK (“CMSUK”), An Investigation to identify the need for a Standardised, Accredited or Certified Professional Pathway for Case Managers in the UK (Reading: CMSUK, 2012) at http://www.cmsuk.org/userfiles/0000%20HT%20Report%202012.pdf [Accessed July 29, 2013].

12 Case Management Society of the UK (“CMSUK”), An Investigation to identify the need for a Standardised, Accredited or Certified Professional Pathway for Case Managers in the UK (Reading: CMSUK, 2012).

13 Case Management Society of the UK (“CMSUK”), An Investigation to identify the need for a Standardised, Accredited or Certified Professional Pathway for Case Managers in the UK (Reading: CMSUK, 2012).
 

First published in the September 2013 Journal of Personal Injury Law (Thomson Reuters).

Authored by Jan Harrison, Niccola Irwin and Joanna Collins
of Harrison Associates, which was CARF*-accredited for the
maximum three years in May 2013 for the high quality of its
rehabilitation services.

*CARF is the Commission on the Accreditation of Rehabilitation Facilities.

Image ©iStockphoto.com/IuriiSokolov

A Nearby Defect Ought to Have Triggered a Thorough Investigation of the Area of the Highway, That Would Have Identified the Index Defect (Under a Parked Car) - James Osborne, Clerksroom

17/10/13. Simson v London Borough of Islington, [2013] EWHC 2527 (QB) was an appeal against the decision of Mr Recorder Bowley QC sitting in the Clerkenwell and Shoreditch County Court in relation to a claim for damages for breach of section 41 of the Highways Act 1980. In the first instance the judge found for the Claimant and awarded her damages of £9,476.62.

The appeal went before Mr Justice Lewis on the 17^th July 2013. James Osborne Barrister, was instructed by Ann Lee of Minster Law appeared on behalf of the Claimant/Respondent. Lisa Dobie appeared on behalf of the Defendant/Appellant.

FACTUAL BACKGROUND

The background to the claim is that on the 19^th April 2009 the claimant left her home in Hargrave Road in the London Borough of Islington and walked to the local shops. Hargrave Road is s typical one way London Street with a combination of residents and pay and display bays on either side of the road.

On her return journey home she walked down the uneven numbered side of Hargrave Road from her home as she felt threatened by people who were coming in the opposite direction. She crossed the road opposite her front door. As she crossed the road passing between two parked cars, she tripped and fell, sustaining a personal injury to her right foot and ankle for which she required hospital treatment.

At trial, the judge was assisted with photographs of the area taken by the claimant three weeks after the accident, the defendant’s photographs of the locus and the claimant’s expert locus report, for which the claimant only had permission to rely on its photographs.

The defendant sought to expose inconsistencies in the claimant’s case as the claimant’s own photographs of the defect differed from the claimant’s locus photographs. In oral evidence the claimant disagreed with the expert commentary and said that the accident was actually on the kerbside part of the carriageway as shown in her own photographs where the accident was shown to be on the kerbside of the carriageway.

The council’s set of photographs showed the accident spot as being on the carriageway side of the parking bay, not the kerbside. There were also two statements of the two council witnesses who said the claimant had told them that that was where the accident occurred.

At trial, counsel for the defendant reminded the judge of the case of James v Pwllheli Pembrokeshire District Council [1993] PIQR 144 where the Court of Appeal emphasised that the question in each case is whether the particular spot where the plaintiff tripped or fell was dangerous. If it was, then there may be liability. But if the particular spot was not dangerous, then it is irrelevant that there were other spots nearby that were dangerous.

At trial, Recorder Bowdery QC found that the claimant proved the mechanism of the accident and that the alleged defective spot was causative of her fall, the defect posed a real source of danger to ordinary users of the highway and went on to find that the defendant had not proven that it has a reasonable system of maintenance and inspection.

Further to the finding for the claimant, the defendant appealed on the following grounds, in summary:

1. That the judge was wrong to find the accident took place at the kerbside edge (and not the carriageway edge of the resident’s bay) and it says there are three reasons for that.

1. The judge had failed to take into account the claimant's own July 2011 photographs;

2. The judge failed to take into account the defendant's 2011 photographs;

3. The judge had misinterpreted one of the documents and as a result had preferred the evidence of the claimant to the defendant's evidence, when in fact properly interpreted the document did not support that conclusion.

2. The second ground of appeal is that the judge made various errors of law on assessing what was reasonably required and on the proper interpretation of section 58 of the Highways Act 1980.

Ground 1

In dealing with the first ground, the challenge to the finding that the accident took place at the kerbside edge of the carriageway, Justice Lewis referred back to the trial judge’s judgment that set out the factual evidence that the judge considered that included all the photographs. Having recorded the evidence that he had heard, the trial judge said this at paragraph 12:

“However, going back to the Claimant, I found the Claimant to be an impressive witness. She answered the questions clearly and concisely. She did not exaggerate or evade questions during her oral testimony. Her answers were measured and credible. It may be correct that some of her pre-action details may have confused the defendant as to the location of the accident and the date of the accident and her evidence pre-action was unhelpful and no doubt caused the defendant concern as to the credibility of her case.”

At paragraph 18 of Justice Lewis’s judgment, he decided the following:

“18 But, in my judgment, there is a much more fundamental reason why this ground of appeal does not succeed. The fact is that the judge had already found, at paragraphs 16 and 17, and having heard all the witnesses, that he believed the evidence of the claimant. He accepted that the location of the accident was on the kerbside edge of the parking bay and he came to that conclusion because he found the claimant to be an impressive, credible and convincing witness and what she said was supported by photographs taken just a few weeks after the event. As he said at paragraph 21, if there was any doubt about the location, then he would prefer the evidence of the claimant to the evidence of Mr Green and dealt with the form. But it is clear from the judgment read as a whole that the judge was in fact not in any doubt. He believed, having heard the witnesses, that the accident occurred where the claimant said it occurred. As Miss Dobie realistically accepted, if that was the reading I gave to the judgment, this particular sub-ground of appeal could not succeed. So for those reasons the first ground of appeal with its three parts does not succeed.”

With respect to the second ground of appeal, questioning the judge's finding on reasonableness, the council’s defence under Section 58(1) of the Highways Act 1980 says:

“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.”

Justice Lewis drew attention to Section 58(2) (d) as one that was particularly relevant which says:

“…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.”

The judge acknowledged that is not enough if there was some defect in some other part of the carriageway which, if that other defect had been identified, would have led to repairs and if those repairs would in fact have covered both the defective location and the accident location.

In the from obiter dicta of the Court of Appeal in the case of Barker v Lancashire County Council [2013] EWCA Civ 582 Justice Lewis stated that:

“Although obiter dicta , I consider that they are correct and I will follow the dicta of the Court of Appeal. The case involved a claim in relation to cobblestones in a tree pit and some of the individual cobblestones were dangerous. What the court said at paragraph 4 is this:

“The judge further held that if he was entitled for the purpose of section 58 of the 1980 Act to look beyond the individual cobblestones to the tree pit as a whole, the council might not have discharged the burden of proof on them under that section because there were indications of untidiness and loose cobblestones which might have caused the council to re-lay the whole area of the tree pit. If that had been done, it would have been done before 29 October by the removal of the cobbles, including the one that caused the accident.”

Justice Lewis was careful not to impose unduly high standards on the highway authority. That has been said by the Court of Appeal in the case of Mills v Barnsley Metropolitan Borough Council [1992] PIQR at page 291 when Steyn LJ stated:

“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 cogently needed.”

Ground 2

Counsel for the defendant stated that the trial judge set the standard of section 58 of the Highways Act 1980 too highly and failed to take into account that it was a question of reasonableness as follows:

1. It was accepted by all that cars were virtually always parked on this street and in this spot. It was not challenged that the defect would not be visible when a car was parked in that parking bay.

2. The trial judge found that the defendant ought to have been aware of the defect in the accident location because the inspector should have seen a defect at the carriageway edge of the parking bay and that in turn ought to have triggered a more thorough investigation, which ought to have led to the detection of the accident location defect.

3. The reference to the aforementioned investigation was unspecified and was not supported on the evidence and set the requirements under section 58 too highly.

Interestingly, the judge stated the following when giving his judgment:

“Firstly, in my judgment, it is correct that the focus should be on whether or not the authority could reasonably have discovered the defect at the accident location, in this case the defect on the kerbside edge of the parking bay. Secondly, in my judgment, it may well be the case, depending on all the facts, that the presence of some danger or defect at one part of the carriageway may be sufficient to trigger alarm bells that something may be wrong on other parts and there needs to be an investigation of those other parts of the carriageway to see if there is a defect on those parts.

...

32 Just pausing here, the example that was given in discussion was a section of the carriageway which had a wheelie bin on it. There may be a crack to the left-hand side of the wheelie bin. There may be a crack to the right-hand side of the wheelie bin. The area underneath the wheelie bin may not be visible. However, the presence of cracks on either side of the wheelie bin may well mean that it is reasonable to investigate whether or not the crack also existed under the wheelie bin....”.

...

“33 In my judgment, read fairly and as a whole, the judge in this case was saying no more than this: this area of road had significant and serious dangers that were visible. Even if cars were parked on the accident location, the presence of those other significant and visible defects should have triggered investigations. If they had been investigated, they would have led to the defect in the accident location being discovered and repaired. That finding, in my judgment, does not involve any error of law in relation to section 58. It focuses on the accident location, but it recognises that other factors may trigger a need to carry out investigations into the accident location. There was no failure, in my judgment, to realise that the relevant standard was reasonableness and the court has to bear in mind the need not to impose unreasonable burdens on the authority. The judge clearly bore that in mind and indeed referred to the relevant case law. The judgment as to what is reasonable on the facts is one for him unless, given that this is an appeal, I consider that his conclusion was wrong or involved a procedural or other irregularity. I do not consider that his decision was wrong or that there was any irregularity here.

...

36 Secondly, the judge did not impose too high a standard in this case. Where you have damage in a parking bay of the sort that you see in the photographs in 2009, it is not imposing too high a standard to say that the authority should have inspected the kerbside part of the carriageway as well as the carriageway side of the parking bay. If that means a car has to be moved, that is not of itself, in my judgment, unreasonable. You cannot say, as the appellant says, that simply requiring a car to be moved for investigations to be carried out imposes an unduly high standard. Further, in my judgment, there was evidence before the judge as to the state of the carriageway in 2009. He had the photographs which were taken a few months later and he was entitled to conclude on the basis of those photographs that there was significant rutting over the area of the carriageway that formed the parking bay. Finally, it was sufficient on the facts of this case for the judge to say that further investigations would have revealed the defect. In my judgment, he did not have to set out each and every step and each and every type of investigation that could be carried out before he reached the conclusions that he did.

...

37 However, standing back from ground 2, the position is this: there was a defect in 2009 on the kerbside edge of the parking bay which caused the injury to the claimant. It was clear from the 2009 photographs that other parts of the carriageway in the parking bay also had what were described as significant and serious defects. The judge was entitled to take the view that that should have triggered an awareness of the need for investigations and, if there had been investigations, the defect would have been discovered and repaired at the accident location. Therefore, in my judgment, ground 2 of the appeal also fails. In those circumstances, as both grounds of appeal fail, the appeal itself is dismissed.”

The example given by the judge in the appeal was a section of the carriageway which had a wheelie bin on it. There may be a crack to the left-hand side of the wheelie bin. There may be a crack to the right-hand side of the wheelie bin. The area underneath the wheelie bin may not be visible. However, the presence of cracks on either side of the wheelie bin may well mean that it is reasonable to investigate whether or not the crack also existed under the wheelie bin.

This case of Simson v London Borough of Islington differs from Court of Appeal in the case of Barker v Lancashire County Council [2013] EWCA Civ 582 and James v Pwllheli Pembrokeshire District Council [1993] PIQR 144 where the Court of Appeal emphasised that the question in each case is whether the particular spot where the plaintiff tripped or fell was dangerous, because in this index case, it was established that a different defect should have led to the discovery of the index defect that was not immediately apparent. The general condition of the area of the carriageway should have led to a thorough investigation, where the index defect would have been found under the parked vehicle in the parking bay.

James Osborne
Clerksroom

Image ©iStockphoto.com/unaemlag