UK: BLG Local Authority Newsletter - What To Watch Out For On The Pavement

Last Updated: 10 July 2008
Article by John Palmer

In Harrison v Derby City Council (2008), the Court of Appeal considered the adequacy of a system of highway inspection, and the extent to which local authorities should implement a more frequent and more vigorous system where special risks or hazards exist in an otherwise unremarkable section of the highway.

The claimant's (respondent) claim arose out of a tripping accident which occurred on 7 August 2005 on a publicly maintainable highway. The defendant (appellant) local authority had a system of inspection of the footway in place on a six-monthly basis with an intervention level for "actionable" defects of 25mm.

The depression which caused the claimant to trip was caused by the collapse of a cellar roof around a grating under the highway. The area where the accident had occurred had been inspected three months prior to the accident when no such depression had been noted. The claimant claimed damages for breach of Section 41.1 of the Highways Act 1980.

The local authority conceded that the defect was a danger. However, it maintained that they had a statutory defence to the claim under Section 58 of the Highways Act in that they had a competent system of inspection carried out at appropriate intervals.

The claimant conceded at trial that the frequency of inspection was reasonable but argued that those parts of the footway over cellar voids ought to have been risk assessed and should have been inspected more frequently.

Mr Vasco, the local authority's highways inspector, gave unchallenged evidence that such a collapse as occurred in this case was a rare occurrence, and gave evidence that whilst over 4,000 repairable potholes arose each year, only five occurred over a cellar void. The judge at first instance found that the authority had been aware of the risk of collapse over cellar voids and should have carried out a risk assessment and inspected such areas at one- or two-monthly intervals. He gave judgment for the claimant.

The appeal

The Court of Appeal reiterated that the fulfilment of the duty to maintain and repair the highway turns on the facts of each case. The Court found that it was unreasonable and disproportionate for the local authority to introduce a different inspection regime over areas of cellar voids where depressions occurred only rarely. It was agreed that the six-monthly system of inspection was reasonable and the Court held that the authority had taken such care in all the circumstances as was required to keep footways free from danger, but it clearly depended upon the extent of the potential damage. In giving the lead judgment, Sir Anthony Clarke MR said: "Once it is appreciated that "collapse" does not mean catastrophic collapse, but collapse sufficient to cause the pit and indentation referred to here, the position is quite different. Moreover, once the evidence of Mr Vasco is accepted that only a handful of problems has been caused by cellar collapse, by comparison with some 4,000 actionable potholes which have been formed by other causes, it can, to my mind, be seen that it would not be reasonable or proportionate to introduce a different inspection regime from that which it used for the majority of potholes; at any rate, where that regime is agreed to be reasonable, as here. That is to my mind so, even if that handful of problems occurs suddenly or quickly. It seems likely to me that the same can be said of at least some of the 4,000 potholes, even if many of those form more gradually".

The Section 58 defence was therefore made out, and judgment entered for that defendant.

Comment

The initial victory was possibly a lucky win for the claimant. However, this case proves once again the uncertainties of outcome of County Court highway tripping cases. The trial judge was sympathetic to the claimant but failed correctly to balance the public and private interest described as so important by Mr Justice Eady in Galloway v London Borough of Richmond Upon Thames. The Court of Appeal delivered a sensible judgment.

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