Griffiths v Liverpool Corporation

JurisdictionEngland & Wales
JudgeLord Justice Sellers,Lord Justice Diplock,Lord Justice Salmon
Judgment Date26 May 1966
Judgment citation (vLex)[1966] EWCA Civ J0526-2
CourtCourt of Appeal
Date26 May 1966
Edith May Griffiths
(Married Woman)
and
The Lord Mayor Aldermen and Citizens of the City of Liverpool

[1966] EWCA Civ J0526-2

Before:

Lord Justice Sellers

Lord Justice Diplock and

Lord Justice Salmon

In The Supreme Court of Judicature

Court of Appeal

(From: His Honour Judge Cunliffe Liverpool Country Court)

Mr. I. H. Morris-Jones (instructed by Messrs. Cree. Godfrey & Wood, Agents for Mr. T. Alker, Town Clerk, Liverpool) appeared on behalf of the Appellants (Defendants).

Mr. H. L. Lachs (Instructed by Messrs. Robbins, Olivey & Lake, Agents for Messrs. Ernest B. Kendall & Rigby, Liverpool) appeared on behalf of the Respondent (Plaintiff).

Lord Justice Sellers
1

The Highways (Miscellaneous Provisions) Act, 1961, by section 1 sub-section 1 abrogated the rule of law exempting the inhabitants at large and any other persons as their successors from liability for non-repair of highways. This section became operative on the 4th August, 1964.

2

On the 9th June, 1965, the plaintiff fell on a footpath in Smithdown Road, Liverpool, a busy main thoroughfare, and subsequently she claimed damages against the Liverpool Corporation as the highway authority alleging that owing to their negligence and/or non-feasance and/or misfeasance she had tripped or fallen on a flagstone and suffered personal injuries.

3

The action was heard before His Honour Judge Cunliffe in the Liverpool County Court and judgment was given in favour of the plaintiff on the 17th December, 1965. From that judgment the Liverpool Corporation appeals. It has been said that the case was possibly the first to be decided since the new law became effective and it seems to be the first time the Court of Appeal has been called upon to consider the Act of 1961.

4

This Court is confronted with a judgment which holds the Highway Authority liable and awards £75 damages to the plaintiff and then concludes with these words of the learned judge: am conscious of the fact that I am holding the defendants liable in law for something which I have held that it was impossible for them to prevent. Such a result may seem worthy of the late W. S. Gilbert or may even justify the famous remark of Mr. Bumble but such thoughts must not divert me from a decision which I find myself unable to avoid on any other ground".

5

Is this what the common law of England has come to in its most modern presentation? It has long been thought that a highway authority's immunity from liability for non-feasance should be abolished, but if the new legislation requires a decision which provokes such comment from the judge who pronounced it the pendulum would seem to have swung so far over the other way as to substitute one unfair law for another.

6

In my judgment it has not done so. At the outset I would, if free and unfettered, take exception to the finding which is the very basis of the claim. As the claim in the action was for damages not exceeding £300 an appeal on fact lies to this Court and further the learned judge does not seem to have directed himself correctly or at all on an important requirement of the statute. A witness for the defendants did say that the unevenness of the flagstone was dangerous and the learned judge held it to be a potential danger and held that the plaintiff fell by reason of it. The fetter upon this Court is that the defendants did not challenge the finding of danger on the appeal.

7

This is an action only between two parties but the standard of construction, maintenance and repair which is to be established is of the utmost importance generally. The Act applies to every area in the country, city, town and village, and in my judgment the finding of fact that such defect as there was in the pavement here was a danger in the sense that it could give rise to liability of a highway authority under the Highways Act, 1959, and the 1961 Act road together would, if it were accepted and established, create a standard of construction, maintenance and repair which is well-nigh unattainable. The liability for damages might well become an intolerable burden.

8

The red carpet will cease to have significance if all within our island are to require and receive the same treatment wherever they may go on a public highway. If what is required is a highway safe and fit for ordinary traffic or reasonably passable or usable the evidence in this case shows that the pavement in question fulfilled that requirement, for it was in daily use up to the plaintiff's accident and, what is more important, for about a month after her accident in the same or possibly aggravated condition without any untoward event in a place where "people walk up and down the pavement more or less all day".

9

In the course of this appeal, in the midday adjournment, on a route which I ought not perhaps to specify, I came across projections and depressions, cracks and chips in paving stones inmany places which could all he described as defects and which could have caused a fall such as occurred to the plaintiff. Since then in wider areas of footpaths and roadways similar con-ditions have become increasingly apparent. All these areas are walked over by the multitude who traverse them with safety and without complaint day by day and night by night. We are all of us accustomed to walk on uneven and irregular surfaces and we can all of us trip on cobblestones, cat's-eyes, studs marking pedestrian crossings, as well as other projections.

10

If the finding that the ½-inch projection of a solitary flagstone in a wide pavement has to be accepted because of the technicalities of this case, as my brethren think, I have perhaps said enough to indicate that it is a standard which in my view should not become a precedent or guide in ordinary circumstances.

11

On the morning of the 9th June, 1965, the plaintiff walked along Magdala Street and turned right into Smithdown Road and was walking along the footpath towards a bus stop in order to "board a bus to take her to work when she slipped on a paving stone which was raised above the other flags. She was 60 years of age and was badly shaken by the fall; one knee was scraped and her right thigh muscle was hurt. She was off work four weeks and it has not been suggested that the damages the judge awarded were not adequate.

12

On or about the 22nd June, that is about thirteen days after the accident, a surveyor went with the plaintiff to the site and it was found then that one flagstone in the second row from the kerbstone protruded ½-inch above the adjacent flagstone and when trodden on that particular flag rocked on its centre.

13

On the 7th July, immediately after a claim had been made against the Corporation on behalf of the plaintiff, about a month that is after her accident and a fortnight after the Surveyor's inspection, the Corporation's District Highway Superintendent went to the site and saw what the plaintiff's surveyor had seen earlier but had not thought necessary to report at onceas a danger which required immediate attention. The Superintendent thought the flagstone unsafe and he was the defendants' witness who said so at the trial and he had it repaired the next flay.

14

For a month at least this "danger" had "been walked over by those who used this busy thoroughfare. The highly qualified surveyor who saw it on the 22nd June was content to leave it unreported, unguarded and unrepaired, and it was similarly loft unguarded and unrepaired from one day until the next by the Superintendent and no other accident occurred.

15

No one could explain what had caused that particular flagstone to project and on the probabilities it had not been in that condition long prior to the plaintiff's fall. The plaintiff her-self and her friend Mrs. Tootill used to go the same way to work each day and neither of them had seen anything wrong until after the plaintiff had fallen. It seems that the flagstone was loose but it does not appear that any movement of the flag caused the fall. It was the slight projection only, according to the evidence.

16

For some six months prior to June, 1965, the demolition and reconstruction of the buildings on the corner site of Smithdown Road and Magdala Street had been taking place. Vehicles had damaged the footpath in Magdala Street by passing over it in the course of work but this had not affected the footpath in front of the site in Smithdown Road where the plaintiff fell.

17

There had been a complete reconstruction of the road in 1954 when the tram tracks were taken up. The footpath was then remade and efficiently remade with concrete flags. Their durable life was stated to be 30 years and they had only been down 11 years. The Superintendent said that he would not expect trouble in this time. There had been no complaint from the police (a normal and expected source of information of dangers in the highway) or from the public or from any employees of the Highway Department who were instructed to keep their eyes open as they moved about and to report defects. The Superintendent passed regularly down Smith down Road (it would seem in a car) but had not noticed anythingwrong and could not be expected to have seen a minor unevenness of this character.

18

As demolition had been taking place on the adjoining corner the pavement had been inspected in January or February of 1965 and no defect was apparently found then. These factors indicate that reasonable care had been taken of this part of the highway. It had not been neglected or ignored and allowed to deteriorate. We know that the pavement was used normally for a month after the accident and the longer the damaged condition existed before that the more does it show that the unevenness was a blemish but not a danger in normal ordinary use. The defect may have developed overnight before the accident.

19

The case has been built up against the Corporation, as I see it, on a remark by the Superintendent recorded in the judge's notes:...

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