Melvyn Griffiths v Gwynedd County Council

JurisdictionEngland & Wales
JudgeLord Justice Christopher Clarke,Lord Justice Burnett
Judgment Date22 October 2015
Neutral Citation[2015] EWCA Civ 1440
Docket NumberB3/2014/0035
CourtCourt of Appeal (Civil Division)
Date22 October 2015

[2015] EWCA Civ 1440

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WREXHAM COUNTY AND FAMILY COURT

(HHJ SEYS LLEWELLYN QC)

Royal Courts of Justice

Strand

London, WC2

BEFORE:

Lord Justice Christopher Clarke

Lord Justice Burnett

B3/2014/0035

Melvyn Griffiths
Claimant/Applicant
and
Gwynedd County Council
Defendant/Respondent

Mr R Moffat (instructed by Quality Solicitors JW Hughes & Co) appeared on behalf of the Applicant

Mr T Horlock QC & Mr R Whitehall (instructed by Berrymans Lace Meyer) appeared on behalf of the Respondent

Lord Justice Christopher Clarke
1

On Saturday 30 th May 2009 Melvyn Griffiths, then about 52, was going for a day out on his bicycle. That took him along a high mountain road, known locally as the Roman Road, on the way to the village of Croesor. The road is neither an A nor a B road. It is not particularly wide, being generally less than 4 metres. The road was probably originally a gravel track with a thin layer of tarmac on top of it. It has gradients of between 14% and 20% in places and sometimes over 20%. As you go along it you will find gravel on the road, vegetation, and changes of camber and of gradient. It is one of the many highways for which the Gwynedd County Council is legally responsible.

2

There came a point when Mr Griffiths rounded a bend and continued cycling downhill. He was not racing but cycling at a moderate speed. As he did so he came upon some debris in the form of small stones, gravel and manure. When he came upon the debris he made a sudden and strong change of direction (to the left) in order to avoid the debris and came upon a defect on the edge of the road on his left side. The defect consisted of the fact that the edge of the road had suffered damage, in that the tarmac surface had come away leaving an area of gravel, the original base layer, which was at a lower level than the top of the surrounding tarmac. The defect was, so the judge found, visible on approach from the corner for some 21 metres. As he moved to avoid the debris he was applying the brakes. The effect of his coming into contact with the defect was to jolt his hands, with the result that he was catapulted from his bike and fell to the ground suffering some significant injuries, cuts and wounds, damage to one finger and a blow to his head and a loss of consciousness for a short time.

3

Mr Griffiths claimed damages from the Gwynedd County Council as the highway authority. His Honour Judge Seys Llewellyn QC, sitting in the Wrexham County Court, dismissed his claim, holding that the defect in the road was not a danger. If the claim had been successful he would have reduced the damages by 20% to allow for Mr Griffiths' contributory negligence, as he found it to be.

4

From that decision Mr Griffiths appeals. Tomlinson LJ refused permission to appeal on paper. On an oral renewal Aikens LJ gave permission to appeal on the issue of dangerousness.

5

The road in question is remote. It is the secondary of two roads which lead to the very small village of Croesor. During the week it was likely to be used only rarely by cyclists but at the weekend it was likely to be used by cyclists sporadically, occasionally in groups as well as singly.

6

The practice of the council was to inspect the road twice a year. The last inspection before the accident was in February 2009 when the defect was there to be seen.

7

The facts to which I have so far referred are those which were found by the judge.

8

The council was guided by a Code of Practice entitled "Well-Maintained Highways". That divided road defects into different categories. Category 1 covered defects which required prompt attention because they represented an immediate or imminent hazard or because there was a risk of short term structural deterioration. Category 2, which included all other defects, was composed of those defects which following a risk assessment were deemed not to represent an immediate or imminent hazard or risk. Paragraph 9.4.19 of the Code reads as follows:

" Category 1 defects should be corrected or made safe at the time of the inspection if reasonably practicable. In this context, making safe may constitute displaying warning notices, coning off or fencing off to protect the public from the defect. If it is not possible to correct or make safe the defect at the time of inspection, which will generally be the case, repairs of a permanent or temporary nature should be carried out as soon as possible, and in any case within a period of 24 hours. Permanent repair should be carried out within 28 days. Some authorities have formally adopted a higher level response time of 2 hours for those Category 1 defects considered to pose a particularly high risk. Others, whilst not formally defining such a high risk category, have arrangements in place to deal with situations requiring a particularly urgent response as they arise."

Paragraph 9.4.20 of the Code provides as follows:

" Category 2 defects are those which, following a risk assessment, are deemed not to represent an immediate or imminent hazard or risk of short term structural deterioration. Such defects may have safety implications, although of a far lesser significance than Category 1 defects, but are more likely to have serviceability or sustainability implications. These defects are not required to be urgently rectified and those for which repairs are required shall be undertaken within a planned programme of works, with the priority as determined by risk assessment. These priorities together with access requirements, other works on the road network traffic levels, and the need to minimise traffic management, should be considered as part of the overall asset management strategy. The programmes of work for their rectification should be part of the HAMP."

9

It is to be noted that Category 2 defects were not necessarily those with safety implications. Paragraph 9.4.21 provides:

" Category 2 defects may be categorised according to priority, high (H) medium (M) and low (L). Authorities should adopt a range of local target response times for Category 2 defects and apply them in responding to various categories of defect based on the risk probability and its likely impact. This should also take into account the likelihood of further deterioration before the next scheduled inspection, and where this is a high probability, the defect should either be dealt with as Category 1 or an intermediate special inspection programmed."

Paragraph 9.5.3 provides as follows:

" All risks identified through this process have to be evaluated in terms of their significance, which means assessing the likely impact should the risk occur and the probability of it actually happening. A defect risk register will considerably assist the risk evaluation process. Although it may not be possible to include every conceivable risk, the register identifies a wide range of risks likely to be encountered. This enables the vast majority of all risks actually encountered through comparison, interpolation or extrapolation, to be assessed with the identified risks. The risks contained in the register are based upon the highest assumed risk attributable to the type of defect, position and assessed type of usage. Local knowledge could assess the risk differently."

The last sentence is of some importance. It is reflected in the provisions of appendix B to the Code, which sets out in B.2.1 a checklist of deficiencies to be identified during safety inspections. These include pot holes, cracks or gaps and edge deterioration in the running surface. Paragraph 3.1 provides:

" Whether these defects should be treated as Category 1 in particular circumstances and the nature and speed of response will depend, amongst other things, upon the assessed risk posed by:

• the depth, surface area or other degree of deficiency of the defect or obstruction;

• the volume, characteristics and speed of traffic;

• the location of the defect relative to highway features such as junctions and bends;

• the location of the defect relative to the positioning of users, especially vulnerable users, such as in traffic lanes or wheel tracks;

• the nature of interaction with other defects;

• forecast weather conditions, especially potential for freezing of surface water."

10

It is thus clear that in terms of the Code categorisation of risk as a Category 1 risk is dependent on a range of factors and is to be informed by local knowledge.

11

The Code provides a risk matrix which is based on an assessment of the impact of a risk occurring (Negligible, Low, Noticeable, and High) quantified on a scale of 1 to 4 and the probability of a risk occurring (Very Low, Low, Medium, High) also quantified on a scale of 1 to 4. Multiplication of the figure for the probability of risk by the figure for the impact thereof produces a series of figures ("the resulting figures"). The resulting figures were divided into bands. Those bands constituted different response categories which called for different response times. Thus, if impact and probability were both 4, the resulting figure was 16 which fell within Category 1. If the resulting figure was between 9 and 12, the category was Category 2, High. Subject to what I say in the last sentence of this paragraph, if the resulting figure was between 2 and 8, the category was Category 2, Medium; and, if it was between 1 and 3, the category was Category 2, Low. The resulting figures 2 and 3 produce either a Category 2, Low or a Category 2, Medium result because those figures could be reached by different means and the relevant Category into which they fell depended...

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