Dominic Nash v Hertfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Lickley |
| Judgment Date | 30 November 2020 |
| Neutral Citation | [2020] EWHC 3247 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-000827 |
| Date | 30 November 2020 |
[2020] EWHC 3247 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Lickley QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: QB-2019-000827
Mr Daniel Tobin (instructed by MW Solicitors) for the Claimant
Adam Weitzman QC (instructed by DWF Law) for the Defendant
Hearing dates: 2 nd – 6 th November, 11 th November, 12 th November
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Lickley QC SITTING AS A JUDGE OF THE HIGH COURT:
Note: I will be referring to page numbers on the paper copies of the trial documents supplied to me unless marked CF (computer file). The page numbers I have used throughout differ from the computer file page numbering for some reason.
Background and Issues
This is a claim for damages for personal injuries and loss suffered as a result of an accident that occurred on Sunday 13/3/16. At about 8.10am. The claimant, then aged 50 (d of b 9/5/65) suffered personal injury when he was riding his Condor road bike north along Mangrove Lane, Hertford Hertfordshire. As he rounded to his left a 90 degree bend bounded by hedges he collided with a Ford Transit van driven in the opposite direction by Onisim Gilca. There were three passengers in the van. No fault is suggested on the part of the driver of the van.
The claimant, in summary, contends that the collision was caused by the condition of the road surface. He says he did not hit or make contact with a pothole but had to take avoiding action and swerved to avoid potholes on the inside of the bend (to his left as he approached) thus forcing him into the path of the oncoming van. There is no dispute that the impact point was to the claimant's offside and beyond the centre of the road. The precise point is however not agreed by the expert witnesses. The claimant says the defendant Hertfordshire County Council (HCC) failed to ensure the highway was in a reasonable state of repair so that the potholes represented a real source of danger. The claimant contends that the accident was caused by their negligence and /or breach of statutory duty to maintain the highway pursuant to S.41 Highways Act 1980. He asserts as factual issues;
(i) At the time of the accident there were defects in the road surface that represented a danger to road users and in particular cyclists. As a consequence, there is a breach of the duty imposed by S.41.
(ii) Those defects were the cause of the accident.
(iii) The last inspection of Mangrove Lane carried out on the 20/8/15 was defective and not performed correctly. There were defects at the scene that should have been noted and recorded as category 2 defects and repaired.
(iv) The defendant's highways maintenance policies are deficient because category 2 defects are not considered and repaired appropriately and therefore the S. 58 Highways Act 1980 defence available to the defendant is not proved.
(v) In addition, he asserts that Mangrove Lane was incorrectly classified and due to the traffic use, location and nature of the road it should have been designated as a class 4a Link Road in accordance with the Code 1. If so a quarterly inspection regime would have been adopted for Mangrove Lane and not
annually as had taken place. Thus, it is said defects in the carriageway would have been found and repaired before the accident. As a result, the statutory defence is not made out.
The defendant Highway Authority submits the sole cause of the accident was not the surface of the road but the riding of the bike by the claimant. They say he rode too fast and too wide around the corner. They say that is what he told PC Jacob on two occasions shortly after arriving at hospital. Despite being seriously injured he was lucid and gave a clear account of what happened. Unfortunately, the claimant's condition deteriorated after this time when he suffered a stroke. They say whatever defects were present, and they accept some were, they played no part in the accident. In addition, they say
(i) The potholes at the scene were not dangerous given their size and location accordingly there is no breach of S.41.
(ii) Even if there is a breach of S.41 the potholes were not the cause of the accident
(iii) Mangrove Lane was correctly designated as a 4a rural access road and that the annual inspection on the 20/8/15 was carried out correctly. They say the defects that were at the scene at the time of the accident had developed over the intervening seven month period from August 2015 to March 2016.
(iv) If they are wrong about (ii) above and there were potholes located on the nearside of the bend that may have been of such depth that they were in a state of actionable disrepair and therefore dangerous the defendant had taken such care in all the circumstances as was reasonably required of them to ensure that the lane was not dangerous to traffic and therefore can rely upon the statutory defence of S.58 Highways Act 1980.
The scene
For the claimant, the bend was to his left and for the van driver to his right. A plan of the road appears on p.1036 (CF). The claimant's approach is shown in the video footage exhibited to the statement of Mr John Franklin. In addition, post-accident police photographs [pp. 190–213] and body worn camera footage show the scene from both driver's perspectives. To the south of Mangrove Lane is the town of Hoddeston and to the north the town of Hertford. Along the 2.5 miles of Mangrove Lane there are entrances to farms and properties at points otherwise the road is bounded by fields. The claimant had lived in Hertford for about 10 years and had cycled along the road before the accident. I am asked to resolve liability only at this stage.
Mangrove Lane is, at the locus, a single-track road with no road markings. The width of the asphalt road surface varies between about 3.2 and 5.5 metres. On the apex to the bend, the carriageway widens to about 6 to 6.2 metres. There is a parking / passing space and a gate to a field to the north-east corner of the bend. The apex of the bend, where there is another gate, is located roughly level with that gate situated to the south west of the road.
The defendant Hertfordshire County Council (HCC) is the relevant highway authority pursuant to the Highways Act 1980 and owes a duty to maintain the highway under S.41 of that act. The road is classified as a rural access road (class 4b) for the purposes of inspections. That classification meant the road was subject to an annual inspection by a highways inspector tasked with noting and reporting defects to the carriageway and edges of the road. The last inspection was carried out on the 20/8/15 by Mr Cooke an inspector employed by Ringway the contractors engaged by HCC.
It is agreed that at the time of the accident the available evidence shows defects including potholes to the road surface at the point of the collision on the claimants nearside of the bend. They are shown in police body cam footage. Unfortunately, at no point were the potholes and other defects measured with any precision and therefore the expert witnesses have done their best using the available film and photographs to assess the potholes taking into account road structures and the depth of the wearing surface being the top layer of the carriageway as an indicator of the depth of any pothole or other defect. Evidence as to dimensions comes from the wife of the claimant and the claimant's solicitor who attended on the 4/4/16. They measured the potholes using their hands and other items but not a ruler. They did not take photographs. Additional evidence comes from the work documentation for the repairs carried out to the potholes and road surface after the accident (p.1050). It should be noted however that repair works will inevitably be larger than the defect repaired given the need to bond repairing materials with solid and sound surroundings.
Law
The correct test to apply in such cases can be found in Mills v. Barnsley MBC (1992) PIQR P289. The familiar passage is;
“ In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that:
(a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public;
(b) the dangerous condition was created by the failure to maintain or repair the highway; and
(c) the injury or damage resulted from such a failure.”
Hughes LJ as he then was, more recently set out the issues which a court would have to consider when determining whether a highway authority is liable for breach of its statutory duty under section 41 in Devon CC v TR [2013] EWCA Civ 418, His Lordship said;
‘8. The issues which called for decision were therefore these.
i) Was there a breach of s 41, i.e. was the road in a condition which exposed to danger those using it in the ordinary way? If yes:
ii) Was the accident caused by that breach? If yes:
iii) Had Devon made out the statutory defence under section 58 of that Act, i.e. of taking all reasonable care? If no:
iv) Was there any contributory negligence on the part of TR?’
As to what constitutes a “ danger” this is a matter of fact for the court to decide and involves a balance between the private and public interest. In James v Preseli Pembrokeshire DC, citing...
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