(1) AC (First Claimant) (2) DC (Second Claimant) (3) TR (Defendant and Part 20 Claimant) v Devon County Council (Part 20 Defendant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 29 March 2012 |
| Neutral Citation | [2012] EWHC 796 (QB) |
| Docket Number | Case No: HQ08X01957 |
| Court | Queen's Bench Division |
| Date | 29 March 2012 |
[2012] EWHC 796 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Slade DBE
Case No: HQ08X01957
Christopher Sharp QC and Matthew White (instructed by Greenwoods) for the Defendant and Part 20 Claimant
Lord Faulks QC and Angus Piper (instructed by Veitch Penny Solicitors) for the Part 20 Defendant
Hearing dates: 17 th– 24 th January 2012
This Part 20 claim arises out of a road traffic accident ('RTA') on 20 th November 2006. On the Claimant's application by an order of Swift J on 15 th November 2010 and of Master Foster of 26 th November 2010, the parties other than Devon County Council ('Devon') are referred to by initials only. The anonymity orders are continued on the basis of medical and other evidence applying CPR 39.2(4) and the need to protect vulnerable claimants in accordance with the principle set out in LK v Sandwell & West Birmingham NHS Trust [2010] EWHC 1928. By agreement the trial was on liability only with quantum issues to be dealt with, if necessary, at a later date.
The RTA occurred on the C25 road between Honiton and Smeatharpe as TR in his Land Rover was overtaking another vehicle, a Vauxhall Vectra. When overtaking he drove into the offside lane, encountered difficulties, the offside tyres of the Land Rover went into a potholed area at the side of the metalled surface and TR lost control of his vehicle after he steered left out of the rut onto the carriageway. His vehicle swerved across the road and collided with trees on the nearside verge of the road. The Claimants suffered catastrophic injuries. AC, who was rendered tetraplegic and suffered a traumatic amputation of one arm in the accident, was paid a lump sum of £3 million and periodical payments of £275,000 index linked per year for life. DC, who suffered brain and multiple skeletal injuries was paid a lump sum of £1,250,000.
TR a dmitted liability but brings a claim against Devon as the Highway Authority for breach of its duties under Section 41 of the Highways Act 1980 ('HA'). Devon denies liability under Section 41. If liability under Section 41 were to be established, they rely upon the statutory defence under HA Section 58. If they were to fail to make out their statutory defence, Devon contend that TR was contributorily negligent. There is also a claim in negligence although at trial the argument was principally directed to the statutory claim. Statutory references in this judgment are to the HA unless otherwise indicated.
Relevant Statutory Provisions
41(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.
…
58(1) 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.
(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—
(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) 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;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.
…
329(1) …
"maintenance" includes repair, and "maintain" and "maintainable" are to be construed accordingly…
At the hearing of the Part 20 claim, Christopher Sharp QC with Matthew White represented TR and Lord Faulks QC with Angus Piper represented Devon. The following witnesses gave evidence for TR: Aron Lockyer, the driver of a vehicle immediately behind TR's Land Rover; PC Stuart Parratt, the police officer who attended the scene, took photographs and prepared a Collision Report; Dr Leek, a collision reconstruction expert and Robert Luck, a highway maintenance expert. For Devon the following witnesses gave evidence: Stephen Tucker, a Highway Maintenance Technician, John Ashplant who is employed by South West Highways as a Highways Inspector and Dennis Willmington, Head of Highway Management. All save for Mr Ashplant are employees of Devon. Expert evidence for Devon was given by Christopher Anderson on Collision Reconstruction and by Adrian Runacres on Highway Maintenance. By agreement between the parties the witness statements of Michael Bird, Chief Engineer of Devon, Dennis Button of Kent Highways Services, John Robinson of Cumbria County Council; Lesley Richards of Tameside MBC and Peter Agent of Surrey County Council were accepted as evidence. The Court also viewed a DVD of sections of the C25 leading up to and including the stretch of road where the accident occurred.
The Relevant Facts
The State of the Road
The accident took place near Limers Cross in Devon when TR was driving his Land Rover on the C25 north towards Smeatharpe between Limers Cross and Ewin's Ash.
The following features of the relevant section of the C25 were not in dispute:
i) It was a rural road known to be used by heavy vehicles and agricultural plant;
ii) Such traffic was known frequently to override the metalled edges of the carriageway and damage the verge and carriageway edge;
iii) The verges in this section of road were known to be soft throughout the year.
Soft verges were more susceptible to damage. Damaged verges deprive the carriageway edge of support leading to a greater risk of failure.
Devon described the C25 as a typical rural road. In the stretch of road where the accident happened the single carriageways were separated by a broken white line. There were also white edge lines. It can be seen from the video that road markings on nearby sections of the C25 vary. In some places there is no centre line and in others no edge lines.
The relevant stretch of road was straight, giving drivers an opportunity to overtake after a winding section.
Shortly after the accident PC Parratt and, one or two days later, Mr Tucker took measurements of the width of the metalled surface of the relevant stretch of road, the potholed area and the extent of intrusion of damage into the metalled surface. PC Parratt also measured the depth of the potholes near the point of greatest intrusion. He took photographs and prepared a report. TR visited the scene of the accident on the day after the accident and took photographs. Dr Leek visited the site on 24 th and 25 th May 2011. He prepared a Collision Reconstruction Report on 23 rd June 2011 following his consideration of material made available to him and a telephone conversation with PC Parratt to clarify his measurement of road width in his report. Mr Anderson visited the site on 2 nd February 2011 where he met Mr Tucker. He took photographs and measurements. Mr Anderson prepared his report on 3 rd May 2011 following consideration of material made available to him.
The collision reconstruction experts prepared a joint statement dated 29 th October 2011 ('the CEJS'). There was no material difference between the evidence of PC Parratt, Mr Tucker and the reconstruction experts as to the length of the potholed area, the width of the metalled surface in that area and state of the edge of the eastern (offside) carriageway. There are some differences in the evidence about the width of the intrusion of the damage into the carriageway and the depth of the deepest pothole.
The reconstruction experts summarise in paragraph 5.6 of the CEJS measurements made by PC Parratt. Apart from comments on the measured depth of the pothole, the following recorded observations made by PC Parratt were uncontroversial.
"MPC Parratt recorded the following:
i. The road was approximately 5.2 metres wide (he does not say, but we understand that his measurements would have been across the metalled surface).
ii. The overriding damage began about 168 metres past the start of the nearside grass verge at the Limer's Cross road junction and extended for about 51 metres, 'leaving a large pothole at the side of the road'.
iii. The 'pothole' varied in width. It was approximately 550 mm wide at its widest point, the greatest intrusion of the pothole into the road was by approximately 400 mm.
iv. The pothole was approximately 80 mm deep.
v. The point of maximum intrusion of the overriding into the road was about 15 metres along the road from the southern end of the overriding damage. The curved tyre mark on the road began about 32 metres from the southern end of the damage and thus about 17 metres...
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Devon CC v TR
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