Mitchell v North Somerset Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 22 November 2016 |
| Neutral Citation | [2016] EWHC 3777 (QB) |
| Docket Number | Case No: QB/2016/0162 |
| Court | Queen's Bench Division |
| Date | 22 November 2016 |
[2016] EWHC 3777 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2 LL
Mrs Justice Andrews DBE
Case No: QB/2016/0162
Mr D Neill (instructed by BLM Law) appeared on behalf of the Applicant
Dr J Parr (instructed by JMW Solicitors) appeared on behalf of the Respondent
APPROVED JUDGMENT
This is an application by North Somerset Council for permission to appeal against the order of Mr Recorder Monty QC dated 22 October 2015 made after the fast-track trial of a personal injury claim brought by Mrs Audrey Mitchell against the Council following an accident on Meadow Street in Weston-super-Mare which happened on 28 July 2012. The front wheel of Mrs Mitchell's three-wheeled walker went into a depression in the pavement just outside an opticians called Paul Darlington Opticians, and she fell over, suffering a significant injury to her right shin, for which she subsequently had to undergo skin graft surgery in hospital. Quantum was agreed, subject to a finding of liability.
By the time that the matter came to court, the relevant depression in the tarmac had been repaired. The Council's case was that it had been repaired as a gesture of goodwill, because before it found out about Mrs Mitchell's accident, it had received an anonymous complaint about people falling over, and it was repaired despite the fact that an inspector had said it was below the level at which it was required under the guidelines to intervene. It was impossible after those repairs to carry out any accurate measurements of the depression.
The Recorder applied the correct legal test set out by the Court of Appeal in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR P291 as refined by the Court of Appeal in James v Preseli Pembrokeshire District Council [1993] PIQR P114. The claimant had to establish that at the time of the accident the pavement was in such a condition that it was dangerous to pedestrians (in the sense that a reasonable person would regard it as presenting a real source of danger); that that danger may reasonably have been anticipated from its continued use by the public; and that the danger arose from a failure by the defendant Council to repair it. In drawing an inference of danger, the court must not set too high a standard. It must be the sort of danger which a local authority may reasonably be expected to guard against.
The Recorder rehearsed the evidence. He made his findings of fact and concluded that the claimant had established that the pavement was dangerous in that sense. He therefore found that the Council was liable.
The Council seeks permission to appeal on grounds which are essentially a challenge to the Recorder's central fact-finding of dangerousness. Issue is taken with each of the four grounds which collectively led the Recorder to make that finding. Directions were given for the substantive appeal to follow if permission is granted. In the grounds of appeal (although it was not pursued before me this morning by Mr Neill) complaint was made that the Recorder gave inadequate reasons for his findings. In my judgment, the Council would have been under no illusions as to why it lost, and that point is unarguable.
The test is one of reasonable foresight of harm to users of the highway, and the Court of Appeal has said on more than one occasion that each case will turn on its own facts. In a recent case, Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094, the Court of Appeal said at paragraph 16:
"In the end it is an exercise of judgment for the trial judge whether the danger is sufficiently serious to require the occupier to take steps to eliminate it. Provided the judge has properly directed himself, this court can only interfere if he has reached a judgment which a reasonable judge could not properly reach on the evidence."
Therefore, I have to determine whether the decision that the Recorder made in this particular case on the evidence before him was one which a reasonable judge could not properly reach, or whether there has been any other error of law or misdirection which might lead the court to conclude that he was not entitled to reach that decision.
If one were to look at the photographs alone, I am bound to say that it would be quite difficult for the claimant to have discharged the burden of proof that was upon her. The photographs show that there is indeed a depression in the tarmac where Mrs Mitchell fell, but the photographic evidence gives no indication as to the depth of the depression, or that it is of such a nature that a local authority would be expected to go and fill it in because it poses an obvious hazard. But this is a case in which, unlike many of the cases that the Court of Appeal has had to deal with, including Mills, there was evidence of previous accidents at the same spot. The photographs were only part of the evidence.
In Mills, the leading case, one of the factors taken into account in allowing the appeal was that there was no evidence of any other tripping accident at that particular spot, although thousands of pedestrians probably passed along the part of the pavement where the corner of the brick was missing over which the claimant, Mrs Mills, had fallen. Nor was there any evidence of any complaint before or after Mrs Mills' accident about that part of the pavement.
By contrast, in the present case there was evidence of previous incidents, and that...
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