Harding (Respondent\Plaintiff) v Somerset County Council (Appellant\Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,THE PRESIDENT |
| Judgment Date | 16 March 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0316-1 |
| Docket Number | CCRTF 94/0656/C |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 1997 |
[1997] EWCA Civ J0316-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BATH COUNTY COURT
(MR RECORDER MEGGESON)
Before: The President Lord Justice Auld
CCRTF 94/0656/C
MR HIGGINS (Instructed by) appeared on behalf of the Appellant
MR GLENNIE (Instructed by) appeared on behalf of the Respondent
Thursday, 16th March 1995
JUDGEMENT
At 8.30 p.m. on 8th February 1991 the plaintiff, Mr. James Lawrence Harding, was walking along a pavement in Frome town centre when he tripped over the concrete of a metal cover of a Victorian drainage culvert, protruding above the surface of the pavement. As a result he fell and was injured. The appellant/defendant, the Somerset County Council, was responsible, as the highway authority, for the maintenance of the pavement. Mr. Harding claimed, in the Trowbridge County Court, that the Council was responsible for his injuries because it had failed to maintain or repair the pavement and the concrete covering of the cover, and had allowed the cover to become a danger to pedestrians in breach of its duty under Section 41 of the Highways Act 1980.
The Council, by its defence, denied that it was in breach of duty under Section 41, alleging that it had taken such care, as in all the circumstances was reasonably required, to secure that the pavement was not dangerous. It maintained that such protrusion of the cover above the pavement as there may have been was the responsibility of its independent contractor who had placed it there, and/or was due to the failure of the nearest property owner to maintain it.
In addition the Council contended that the cover protruded above the pavement by less than an inch, that was a reasonable and foreseeable irregularity in such a surface, and therefore it did not constitute a breach of Section 41.
Finally, it alleged that Mr. Harding was contributorily negligent because he failed to look where he was walking.
Section 41 of the 1980 Act provides that the highway authority has a duty to maintain the highway. To establish "a prima facie case" against the Council he had to "show that the pavement was dangerous" or "not reasonably safe for pedestrians"; that is how Lord Denning, Master of the Rolls put it in his well-known passage in Meggs v. Liverpool Corporation [1968] 1 WLR 689 at 692 B, to which I shall refer again.
It was not enough for Mr. Harding to show that the alignment of the cover with the surface of the pavement was not perfect; fractional differences in levels of the pavement and between its surface and interruptions in it (such as drain covers) are to be expected. See, for example, another of the Liverpool cases Littler v. Liverpool Corporation [1968] 2 All E.R 343, a case in which there were fractional differences in levels between flagstones on the pavement, Ford v. Liverpool Corporation [1972] 117 Solicitors Journal at 167, where there was a 1 inch high ridge where the tarmacadam of the roadway abutted onto a metal bridge. If Mr. Harding established that prima facie breach of duty, he still had to meet a defence provided to the Council, as I have indicated and pleaded by it, under Section 58 (1) of the 1980 Act. It provided a defence if the Council could prove that it
"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"
Section 58 (2), so far as the material provides
"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;"
At the hearing of the claim before Mr. Recorder Meggason, there was little, if any, issue on the facts of the accident concerning the state of the pavement. The Victorian metal and concrete-covered culvert in question ran at right angles across the line of the pavement to carry water from the eaves of the house at that point into the gutter. At a point near the kerb line it protruded above the surface of the surrounding tarmacadam.
At the time of the matter before the Recorder the degree of protrusion was spoken of generally as being something less than three-quarters of an inch. In photographs of it there is one which shows a 20 pence piece placed vertically against the side of the protrusion at its highest point and it shows that the protrusion does not measure the full diameter of the 20 pence piece. Accordingly, the protrusion was very much less than three-quarters of an inch. If the photograph was anything to go by, half an inch or less. Such a covered culvert was a common characteristic, particularly in the pavements of Frome.
The pavement was a direct pedestrian road that routed into Frome town centre and was used regularly by Mr. Harding and others. Mr. Harding's evidence was that he walked along that pavement about three times a week for two years. He had noticed the covered culvert and had never noticed any damage to it before he tripped over it.
The Council had received no complaints about the condition of the pavement or the culvert. It had inspected the pavement and the culvert regularly, most recently before the accident on 4th January 1991; that is just over a month before the accident. Its surveyor found nothing to suggest to him that it was dangerous to pedestrians. Finally in this short rehearsal of the uncontradicted facts established before the Recorder: the road was lit at the time of the accident; the street lighting which was nearby is to be seen in the photographs before the Recorder and this court.
The Recorder gave judgment for Mr. Harding on 24th November 1993, sitting in the Bath County Court. He found that the Council was in breach of its duty under Section 41 and that it had not made out a defence under Section 58. He awarded Mr. Harding damages of £8,075 plus interest.
The Council now appeals against that finding of liability, alleging that he was wrong to find a breach of Section 41 and that he failed to have proper regard to the matters set out in Section 58 and the uncontradicted evidence. There was no evidence to support his finding that the covered culvert was an unusual feature of the Council pavements.
On the first main issue of whether Mr. Harding had established a prima facie breach of Section 41, that the Council had failed to maintain the highway, the Recorder found that there was nothing in the Council's defence that it was not responsible for maintaining the pavement and the concrete, since the latter had been there and had been maintained and repaired by it over many years. That finding is not challenged in this appeal, quite rightly. We are surprised to see that it was raised by the Council as an issue in the first place. It may well have served to distract the Recorder from the central issues that he had to consider.
The Recorder went on to deal with the issue under Section 41 of the 1980 Act: "Whether the Council had failed to maintain the pavement and concrete cover so that it was reasonably safe for persons using it." In doing so he considered the Liverpool cases, but observed that each case has to be looked at on its own facts and distinguished those cases from this because of the combination of tarmacadam surface pavement and the old metal culvert set in.
He said at page 3 letter C of the transcript of his judgment:
"The fact that makes this case different from the others which have been quoted to me in argument by both plaintiff and defendant is that running across this pavement there was this cast iron square section Victorian drainage conduit with a circular cast iron pipe running within that conduit….. Had it been solely a tarmacadam pavement with no conduits running across it and some depressions of this depth had arisen from either vehicles driving over it or general settlement, I think the plaintiff would have had difficulty making out his claim unless there had been a most substantial gap or trip in the pavement. But it is was not such a straight forward set of tarmacadam; it had this Victorian cast iron drain running through it which had been covered over during the years when the County Council were maintaining this pavement with tarmacadam or something similar. By virtue of its construction of course it could not shrink or settle, but it is quite clear from the photographs that the surrounding bitumen and gravel mix had done just that."
Inferentially, at that point in his judgment, the Recorder found that Mr. Harding had established a prima facie breach of Section 41. He then went on to consider the defence available under Section 58. However, later when considering that defence he reverted to the question of primary duty under Section 41. At page 5 A of the transcript of his judgment he referred to the culvert as being "a potential for danger." At page 6 B to C of his judgment he said this:
"It seems to me that the highway authority are under a duty to ensure that it is safe for people to walk hand in hand,husbands and wives or perhaps courting couples, along the pavement...
To continue reading
Request your trial