The public sector team recently defended a highway tripping claim on behalf of a local authority both at trial and at a re-trial.
We acted on behalf of a local authority in a highways tripping claim, when the claimant tripped and fell due to a pothole in the carriageway of a busy town centre. The claimant sustained a fracture and dislocation to her knee.
The claimant contended this was a busy area of the town centre and that the defect should have been repaired prior to the accident.
The claim was defended to trial on the basis that the defect was not dangerous. The claimant’s measurement of the defect was 29mm in depth. The Council worked to an investigatory level of 20mm and an intervention level of 40mm. The measurement the inspector had taken shortly after the accident was 22mm. It transpired this was not the pothole in question, but his evidence was that he had found the deepest pothole and measured it in the area where the claimant had reported to have fallen.
At trial the District Judge accepted it was more likely than not that the depression was nearer to 22mm in depth than the 29mm alleged by the Claimant.
Having considered the evidence from the highways manager and the inspectors and bearing in mind the intervention level of 40mm, the District Judge accepted that if intervention had been necessary it would have happened. The council’s evidence was that this part of the carriageway would not be subject to high footfall since there was a nearby designated crossing point. The District Judge was satisfied the risk the pothole presented was of a low order and there was no breach of duty by the Council.
The claimant then sought to appeal the decision on the basis that the defect was in a town centre area where pedestrians were likely to use this carriageway and that 20mm should have been the criteria to determine if a defect was actionable or not (not 40mm). The claimant contended that the overwhelming evidence was that the carriageway was heavily used by pedestrians but that the Judge had held that there was no evidence to suggest the carriageway was used as a footway.
The claimant also sought to appeal the Judges assessment of the test under section 41 which had been referred to as being ‘a real source of danger’ rather than ‘a reasonable foresight of danger’. The claimant said the benchmark was said to be set too high.
We resisted the appeal and contended the Judge had not erred in fact or in law on the section 41 issue. The appeal Judge found the district judge had set out a number of matters when considering dangerousness which related to matters relevant to s.58 of the highways act 1980 and not s.41. The appeal was allowed and a re-trial listed.
The case was heard again at a re-trial in front of a different District Judge.
Having heard all of the evidence, the Judge made it clear in his judgment that he found the defect in the carriageway was ‘unremarkable’ and was of the type seen up and down the country. He accepted the measurement of the defect was more likely to be the measurement undertaken by the claimant’s husband at 29 mm in depth. He was also a resident of the town in question and did not accept the carriageway at that point was heavily used by pedestrians. He was aware of two crossing points either side of the accident location and therefore there was no requirement to inspect the carriageway as a footway. He was also mindful that he had to balance private interests with public obligations.
This is a sensible judgment in a case where the highways inspector had risk assessed a defect which was above the ‘investigatory level’ of 20mm. He had taken into account the location of the defect in a busy town centre, and also the fact that the defect had not approached the ‘intervention’ level of 40mm.
The most recent highway code of practice is now focused on a ‘risk based approach’. The new code sets no prescriptive minimum standards or “intervention” levels. The level of response is to be determined on the basis of a risk assessment.
This case is a good example of how the courts are approaching ‘investigatory’ levels. The inspector had undertaken an “on the spot” risk assessment. It is clear the courts will take into account the fact that local authorities do not have the infinite resources to ensure roads and footways are entirely free from defects, and it is reasonable to repair only those which pose a real danger to pedestrians.
Caroline Elson, Senior Associate in the public sector team.