PI Brief Update

Keith Barker v. Lancashire County Council [2013] EWCA Civ 582 - Daniel Tobin, 12 King’s Bench Walk

18/06/13. At approximately 5.30pm on 29^th October 2007 the Claimant ('C') tripped and fell on a raised cobblestone in the surrounding area of a tree pit in Henderson Street, Preston. The Defendant ('D') was the relevant highway authority for the purposes of the Highways Act 1980.

The cobblestone over which C tripped was protruding above the surface of the surrounding cobblestones by about an inch at the time of the accident. D's intervention level was 20mm and, accordingly, there was no issue at trial that D was in breach of its duty under Section 41 of the 1980 Act.

However, D succeeded in defending the claim on the basis that it had established its Section 58 Defence. HHJ Butler, the trial judge, held that D had taken the necessary care envisaged by Section 58 because the cobblestone was not dangerous at the time of the last inspection and there was no reason to suppose that it might become dangerous by the time of the next inspection.

That inspection had been undertaken on 9^th August 2007, i.e. about 11 weeks before C's accident. D operated a system of scheduled inspections whereby this footway was inspected annually. This was considered a reasonable inspection frequency.

However, there was also evidence before the trial judge that there were other areas near the material cobblestone which were in a less than satisfactory condition at the time of the pre-accident inspection. In his judgment, HHJ Butler said:

"But if I were looking for the potential to become dangerous, I find that the defendant might not have discharged the burden of proof. The area was plainly untidy, some cobbles were loose and the state of the tree pit was something that might well have led the inspectors to decide that maybe there was nothing dangerous yet, but they should re-arrange and re-lay the area."

Having said this, HHJ Butler concluded that he should not have regard to the tree pit as a whole and that, accordingly, D had succeeded in establishing its Section 58 defence.

C appealed this decision and on appeal the Court of Appeal (Longmore, McFarlane LJJ and Sir Stanley Burnton) said that the short point for which permission to appeal had been given was whether, granted that a claimant for the purposes of establishing liability under Section 41 of the 1980 Act has to identify the particular defect that gave rise to his injury, the local authority can also refer exclusively to that particular defect when seeking to establish its Section 58 defence?

It was C's contention that if D was in breach of duty in relation to a wider part of the highway than that containing the particular defect and it ought to have performed its duty to maintain the highway such as to eradicate the individual defect which caused the injury, then it should be liable for the accident notwithstanding that there was no absence of due care in relation to the actual defect which caused the accident.

In dismissing the appeal, the Court of Appeal said that the point need not be conclusively determined because the facts as found by the trial judge could not give rise to any legitimate conclusion that D had failed to comply with the Section 58 obligation that it take 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 to traffic.

The trial judge had been impressed with the evidence of D's highways inspector and had found that he would see and repair any dangerous defects. On this basis, the Court of Appeal found that there were no findings of fact to justify C's contention that the area of the tree pit was in August 2007 in a condition such that D should have relayed it in its entirety prior to C's accident.

For this reason, the appeal was dismissed.

Comment

This appeal did raise an interesting issue and to that extent it is regrettable that the Court of Appeal concluded that it must await final decision on another occasion.

However, a few interesting points do emerge from the judgment.

First, the Court of Appeal reiterated that as a matter of principle and authority a successful claimant must identify the defect in the highway which gave rise to his injury and that it is not enough to show that the general area of the highway was in some way defective (see Mills v. Barnsley MBC [1992] PIQR P291 and James v. Preseli Pembrokeshire DC [1993[ PIQR P114).

Secondly, Longmore LJ (with whom the other judges agreed) hinted in obiter remarks that had they determined the point for which permission had been granted, they would have rejected the Claimant's contention that the trial judge was entitled to look beyond the actual defect which was causative of the accident. It was observed that the wording of Section 58 uses the phrase "the part of the highway to which the action relates" and Longmore LJ said:

"That phrase is to my mind more apt to describe the actual feature that caused injury to a claimant rather than a wider or more generalised area of the highway which did not cause any injury in the case before the court."

Thirdly, Longmore LJ said during the course of the judgment that investigation of other defects in nearby parts of the highway "will normally be an irrelevant inquiry."

Finally, one detects in Longmore LJ's words a sympathy with the plight of what are increasingly cash-strapped highway authorities; having cited the well-known passage of Steyn LJ (as he then was) in Mills v. Barnsley MBC , where he cautioned against "scarce resources" being wasted because of "unreasonably high standards" of maintenance and repair, Longmore LJ concluded with "as in Barnsley, so in Preston."

From a highways practitioner's point of view, it is interesting to ask how, if some future Court were to decide this point in favour of a claimant, the line would be drawn? Difficult evidential issues might arise regarding the relevance or otherwise of street resurfacing works, commissioned to deal with defects some distance from that which was causative of an accident. Might some new phenomenon of mechanical jurisprudence along the lines of, "if it is within 5' of the accident site it is relevant, but beyond that it isn't" rear its ugly head?

Alas, this may be an issue for another day.

Daniel Tobin
12 King’s Bench Walk

Image cc flickr.com/photos/15362046@N04/5349198484