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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barker v Lancashire County Council  EWCA Civ 582 (23 May 2013)
Cite as:  EWCA Civ 582
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ON APPEAL FROM BURNLEY COUNTY COURT
HIS HONOUR JUDGE BUTLER
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE MCFARLANE
THE RIGHT HONOURABLE SIR STANLEY BURNTON
| KEITH BARKER
|- and -
|LANCASHIRE COUNTY COUNCIL
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Mr David Knifton (instructed by County Secretary and Solicitor's Group) for the Respondent
Hearing dates: 9th May 2013
Crown Copyright ©
Lord Justice Longmore:
i) Mr Barker tripped and fell on a raised cobblestone in the surrounding area of a tree pit outside 48 Henderson Street, Preston, at approximately 5.30 p.m. on 29th October 2007 when it was getting dark. Photographs of the area near Mr Barker's house where the accident occurred show a semi-pedestrianised street furnished with flagstones and cobbled areas surrounding occasional cherry trees;
ii) the particular cobblestone which caused Mr Barker to trip was protruding above the surface of the surrounding cobblestones by about an inch at the time of Mr Barker's accident;
iii) the protruding cobblestone presented a real source of danger to pedestrians and arose from the Council's failure to maintain the highway, such that a breach of the statutory duty under s 41 of the Highways Act 1980 was established;
iv) the Council had a system of annual inspections of highways such as Henderson Street; inspection once a year was reasonable;
v) there had been no prior complaint regarding the cobblestones in Henderson Street;
vi) the inspectors who carried out the last annual inspection on 9th August 2007 were experienced inspectors, who carried out their duties conscientiously and carefully, and who identified and recorded defects at other locations in Henderson Street. If the cobblestone had protruded more than 20 mm at the date of their inspection, they would have noticed it and eliminated the protrusion; that was because what the Council called their "intervention level" was 20 millimetres (0.79 inches) above the level of the street; and
vii) during the period of 11 weeks between the last inspection on 9th August and the accident on 29th October, tree root growth beneath the cobblestone had moved the cobblestone upwards by up to 1 cm (0.39inches);
"The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway."
Section 58 of the Act provides:-
"(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority 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."
The court is directed by sub-section (2) to have regard to a number of matters in considering the highway authority's defence but it is agreed that it is only (d) which is relevant for the present case:-
"whether the highway authority knew, or could reasonably have been expected to know, that that condition of the part of the highway to which the action relates was likely to cause danger to users of the highway."
"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."
"He was the sort of man who would perform his duties conscientiously and carefully. He had been doing the job since 2001, had worked with Mr Grout for 3 years, and was a training inspector. He told me that at tree stations you are told to be more diligent. There was a school opposite, so he would have looked carefully. Had he seen the defect he would have picked it up. I find that if the defect had been there, Mr Thomas would indeed have picked it up and seen it.
I am in no position to judge Mr Grout in terms of his impressiveness or diligence as he did not give evidence before me. Although his statement was adduced under the Civil Evidence Act, hearsay evidence does not have the same weight. The only evidence I have regarding Mr Grout is that Mr Thomas said he was very diligent, and sometimes surprised him by picking up things Mr Thomas might not notice."
He later refers to the cobblestone not being at intervention level as being the reason why "these experienced inspectors would not have picked it up".
"But if I were looking for the potential to become dangerous, I find that the defendant might not have discharged the burden of proof. The area was plainly untidy, some cobbles were loose and the state of the tree pit was something that might well have led the inspectors to decide that maybe there was nothing dangerous yet, but they should re-arrange and re-lay the area."
The double use of the word "might" shows how speculative the judge's scenario is. The inspectors "might" have decided that, despite the absence of present danger, they should "re-lay" the area and so the Council "might not" have discharged the burden of proof.
"It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed."
As in Barnsley, so in Preston.
Lord Justice McFarlane:
Sir Stanley Burnton: