Demetrios Karpasitis v Hertfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Vikram Sachdeva |
| Judgment Date | 20 October 2023 |
| Neutral Citation | [2023] EWHC 2614 (KB) |
| Year | 2023 |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-003247 |
[2023] EWHC 2614 (KB)
Vikram Sachdeva KC
(Sitting as a Deputy High Court Judge)
Case No: QB-2021-003247
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Porter KC (instructed by Fieldfisher) for the Claimant
Adam Weitzman KC (instructed by DWF Law LLP) for the Defendant
Hearing dates: 14 – 16 and 23 March 2023
Further written submissions: 27 and 28 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 20 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Vikram Sachdeva KC
Vikram Sachdeva KC:
Introduction
On 22 April 2020, a month into the first Covid-19 lockdown, Demetrios Karpasitis, a 42 year old man, decided to go on a ride on his mountain bike during the afternoon. He followed a familiar route which took him onto a path to the east of the A10 dual carriageway. It was separated from the A10 by a grass verge. He travelled north up to the Paul Cully bridge which crossed over the A10 near Cheshunt. Up to the bridge the path was signposted as a shared footpath and cycle path. North of the Paul Cully bridge the path narrowed from 2.5m to approximately one metre, and there was no sign denoting the changed use of the path.
Mr. Karpasitis continued north to a quiet road called Anchor Close where he turned around to go home. Heading south towards the Paul Cully bridge at around 6.30pm or 7pm Mr. Karpasitis encountered a jogger also travelling south. Travelling around 10mph, he took the decision to overtake the jogger. This required him to cycle on the grass verge to the right of the path, with the A10 on the right of the grass verge.
Unfortunately there was a hole in the verge, just south of a road sign, which was sufficient to throw Mr. Karpasitis from his bicycle. This caused a complex fracture of the second vertebra, with serious consequences said to flow from the accident, including the loss of his job as a social worker.
The Defendant is the Highway Authority in respect of the grass verge (as well as the adjoining footway and carriageway) where Mr. Karpasitis fell.
Directions were made by consent by Master Gidden for a split trial of breach of duty and factual and legal causation of some injury (ie liability) and quantum, and the preliminary issues of liability (together with contributory negligence) are now before me.
The allegations pleaded by Mr. Karpasitis against the Defendant are of two types:
i) A breach of s41 Highways Act 1980, and
ii) A breach of a duty of care owed at common law.
The allegations of breach of s41 are primarily based on an allegation that the Defendant failed, adequately or at all, to heed the “obvious” risk that the hole posed to users of the cycleway/footpath given (1) the designated use of the path as a cycleway/footpath, (2) the narrow width of the cycleway/footpath (1m of usable path, as compared with the recommended 2.5m), (3) the “obvious” interaction which was likely to occur between cyclists and pedestrians, (4) the “obvious” need for cyclists and/or pedestrians to move onto the grassed area adjacent to the cycleway/footpath in order to let others pass, (5) the proximity of the hole to the cycleway/footpath (0.7m), and the size and depth of the hole. Mr. Karpasitis also alleges that the Defendant failed to devise, institute and/or enforce any or any adequate system of inspection of the highway.
The Defence asserts that the path was a footpath rather than a shared use cycleway/footpath.
Mr. Karpasitis responded to this assertion by introducing a further allegation of breach of a common law duty to signpost the path as a footpath given that the path south of the Paul Cully Bridge was clearly signposted as shared use, in the event that the path was a footpath. This allegation was made in the Reply rather than by an amendment to the Particulars of Claim, contrary to the CPR. However the Defendant did not object to that unorthodox approach at the time. The Defendant filed an Amended Defence pleading that it owed no common law duty of care to the Claimant. Mr. Karpasitis filed an Amended Reply specifically asserting that the Defendant did owe Mr. Karpasitis a common law duty of care.
At trial the Defendant indicated that it did not intend to press its further argument that illegality barred any claim, nor did it seek to pursue a re-amendment to its Defence to visit any negligence in relation to signage upon a local authority.
I acknowledge the hard work, care and skill which has plainly been deployed by both leading counsel over the course of the hearing and in written submissions in the preparation and presentation of their respective cases. I do not intend any disrespect to either of the parties if I do not address every single point which has been made to me, but I have taken them all into account and what follows is my assessment of the issues important to the disposal of this claim.
The Law
Section 41 Highways Act 1980 states as follows:
“41.—Duty to maintain highways maintainable at public expense.
(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.
(1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”
Section 328 states as follows:
“328.—Meaning of “highway”.
In this Act, except where the context otherwise requires, “highway” means the whole or a part of a highway other than a ferry or waterway.”
Section 329(1) states as follows:
“329.—Further provision as to interpretation.
(1) In this Act, except where the context otherwise requires—
…cycle track” means a way constituting or comprised in a highway, being a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988) with or without a right of way on foot…
“footway” means a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only…
“maintenance” includes repair, and “maintain” and “maintainable” are to be construed accordingly;”
In Southwark LBC v Transport for London [2018] UKSC 63 [2020] AC 914 Lord Briggs stated as follows:
“6. The word highway has no single meaning in the law but, in non-technical language, it is a way over which the public have rights of passage, whether on foot, on horseback or in (or on) vehicles.”
Section 58 Highways Act 1980 states as follows:
“ 58.—Special defence in action against a highway authority for damages for non-repair of highway.
(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…”
Section 41
Section 41 creates a duty to put a highway in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition: Burnside v Emerson [1968] 1 WLR 1490, 1496 – 7 per Diplock LJ.
The duty is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them – taking account of the traffic reasonably to be expected on the particular highway. Motorists who thus use the highway are not to be expected to be model drivers. Drivers in general are liable to make mistakes, including some rated as negligent by the courts, without being merely for that reason stigmatised as unreasonable or abnormal drivers. In every case it is a question of fact and degree whether any particular state of disrepair entails danger to traffic being driven in the way normally expected on that highway: Rider v Rider [1973] 1 QB 505, 514F – G.
Section 41 creates an absolute duty to maintain the highway, which includes the work of repair and the taking of measures which will obviate the need to repair, to...
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