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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 >> Lawrence v Kent County Council  EWCA Civ 493 (26 April 2012)
Cite as:  EWCA Civ 493
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ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, Maidstone County Court
Mr Justice Eady
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
SIR MARK WALLER
| Josie Lawrence
|- and -
|Kent County Council
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
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for the Appellant
James Dingemans QC and James Hawkins (instructed by Berrymans Lace Mawer LLP)
for the Respondent
Hearing date: 27 March 2012
Crown Copyright ©
Sir Mark Waller:
"For my part I find it a sterile exercise to make a comparison between the facts of reported decisions in tripping cases and the facts of the present case. In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that:
(a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public;
(b) the dangerous condition was created by the failure to maintain or repair the highway; and
(c) the injury or damage resulted from such a failure. Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority's reliance on the special defence under section 58(1) of the 1980 Act, namely, that the authority had taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic. On this aspect the burden rests on the highway authority."
Steyn LJ then found that two findings of fact could not be sustained and continued in the following terms:-
"The short point is whether the judge was right in these circumstances in regarding this as a danger to women. Like the judge, I do not consider that it would be right to say that a depression of less than one inch will never be dangerous but one above will always be dangerous. Such mechanical jurisprudence is not to be encouraged. All that one can say is that the test of dangerousness is one of reasonable foresight of harm to users of the highway, and that each case will turn on its own facts. Here the photographs are particularly helpful. In my judgment the photographs reveal a wholly unremarkable scene. Indeed, it could be said that the layout of the slabs and the paving bricks appears to be excellent, and that the missing corner of the brick is less significant than the irregularities and depressions which are a feature of streets in towns and cities up and down the country. In the same way as the public must expect minor obstructions on roads, such as cobblestones, cats eyes and pedestrian crossing studs, and so forth, the public must expect minor depressions. Not surprisingly, there was no evidence of any other tripping accident at this particular place although thousands of pedestrians probably passed along that part of the pavement while the corner of the brick was missing. Nor is there any evidence of any complaint before or after the accident about that part of the pavement. Like Mr Booth, I regard the missing corner of the paving brick as a minor defect. The fact that Mrs Mills fell must either have been caused by her inattention while passing over an uneven surface or by misfortune and for present purposes it does not matter what precisely the cause is.
Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts ever year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life. 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. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest. The judge's ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was unfortunately injured in this case. The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous. In my judgment the plaintiff's claim fails on this first point.
In view of this conclusion on the first point, it is unnecessary to consider the judge's conclusion on the special defence under section 58 of the Act or the issue of contributory negligence."
"There is no issue that it is the same manhole cover and Mrs Rose took the photograph at p.24. She told me that from her own point of view she thought it was an obviously dangerous feature in the pavement and was concerned that it should have been left like that to a danger of pedestrians. I bear in mind that I found Mrs Rose a perfectly sensible woman, now 60 years of age and a bank customer service officer. I also bear in mind that being C's daughter, and no doubt being herself upset to find C's injury and discomfiture, she would not be a completely independent witness in the sense of not being immune from any emotional reaction to the situation. But there it is, that was her impression and I give it some but not great weight in the totality of what I have before me."
"Kent County Council's criteria for an actionable defect, if there are defects evident within the carriageway are for that defect to be over 50mm in depth. For footways, the actionable criteria is 20mm in depth.
. . .
Exhibit "JM2" is a photograph taken at the joint site meeting. This photograph shows that the height of the manhole cover clearly did not exceed the mobile phone. I estimate the height of the manhole cover to have been around 10 to 15 millimetres."
The judge summarised the evidence in this way:-
"15. We then have the evidence of Mr Cunningham apart from that which I have already referred to. At page 72 in the bundle there is the instruction sheet that he gave for work to be done. What happened is that having had his inspection on 31st January, Mr Cunningham took the view that the manhole cover did need repairing. KCC have three categories of urgency: first, those defects that are glaringly obviously dangerous and need immediate action – a two hour case; second, those that still need urgent action but not so urgent – a three days case; third, those that still require action now but which can take their turn with the rest – these take a few days longer. Mr Cunningham wrote by hand on his report against details of location etc: "make safe small trip round manhole!". He translated that in evidence as meaning that it is an instruction to go round to that manhole and deal with the small trip, not digging it all out right the way round, but in effect making good the tarmac and bringing it all back up flush, which of course is what is to be expected. That particular point of interest in evidential terms is what he meant by the term "make safe". The evidence before me is that "make safe" is not a term of art, it is not a category which the inspector would use to signify a particular kind or level of urgency. It is his phrase and it means just what it says. The use of those words to me, used as a piece of ordinary language as it was by Mr Cunningham, clearly implies that what was found was not safe, it should not be left in that state and it should be repaired. That is what it conveys to me; I believe that is the impression that Mr Cunningham had at the time and what led him to say and use those words.
16. In his statement and again in his oral evidence, Mr Cunningham says that actually the repair did not really need doing at all: "In fact I gave instructions for the work to be done not because it needed to be done but out of customer care". He explained that having had a complaint from an old lady who had tripped and hurt herself and got very upset about it and bearing in mind she is a local tax payer and that only a small amount of work was needed to be done to repair, it was the least he could do in terms of customer care to have it put right. That is his explanation and the explanation he gives now. I do not find anything along those lines, however, either in the work instruction on p.72, or in the report of the incident at p.64. It seems to me unlikely that KCC, strapped for cash even in 2007 – of course much more now – would be doing work for which they simply genuinely did not think needed to be done. I find it difficult to accept the gloss that Mr Cunningham puts on it now to explain why he gave the instruction for repairs to be done. Much more likely is that he did find that the trip needed to be made safe as he recorded and gave instructions accordingly."
"Q. Do you accept that the expression "make safe" normally means it is not safe at the moment to "render it safe"? A. I accept that, yes.
Q. You do accept that. That was your assessment of what was needed to make it safe? A. You're going along the lines of me feeling it was dangerous ---
Q. I do not know, you are the one who wrote this? A. I didn't feel it was dangerous but that is what was written on the ticket to get it done. If I'd have felt it was dangerous, and this is why I explained the general maintenance works, you can see at the top of the ticket – unfortunately these are our old tickets that we used to use but [if] I [had seen] something that was dangerous I would have quite clearly circled "2 hour" or a "3 day" response. For something that is dangerous that is how we respond, and I haven't responded in that way, I've circled the "general maintenance works" which basically they get done in amongst the programme of other works that isn't dangerous that we get done."
"That is about all the evidence that I have, save that I should add that there is no evidence before me of any similar accidents on the pavement of that road either before or after C's accident. I have to stand back therefore and ask myself: do I draw, as I am invited to do by C, the conclusion that on the balance of probabilities the protruding manhole cover was a danger to pedestrians in the sense that in the ordinary course of human affairs danger may reasonably have been anticipated from its continued use by the public. Looked at in that neutral and objective way I come to the conclusion that plainly that test has been met."
It will be noted that in that paragraph there is no reference to having to bear in mind that any duty imposed must not be too high having regard to the balance that must be struck between the public and the private interest. Mr Browne QC submits the judge clearly had that in mind because he had cited fully from Steyn LJ's judgment and had that important principle set out in his judgment in earlier paragraphs.
"10. These statements of principle are clearly fundamental to the present appeal. I was reminded also of the strict tests to be applied in the modern appellate regime, whereby an appeal from the county court proceeds by way of review in the High Court, rather than re-hearing. In particular, I was shown the words of Thomas LJ in Aldi Stores Ltd v WSP Group Plc  1 WLR 748 at , albeit in the different context of a decision on abuse of process:
"The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him."
In this context sometimes reference is made to the speech of Lord Fraser in G v G  1 WLR 647, where he stated that "… the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible"."
"31. It emerges from the judgment of Steyn LJ that one can take into account, if it be the fact, that no evidence has emerged of any other tripping accident having occurred in the same spot if it is a well-used thoroughfare. At paragraph 6 of his judgment, it was found by the Judge that Newbury Avenue was "in the middle of a densely populated residential area". There is no evidence of anyone else having tripped at this spot.
32. Looking at the photographs, I have to say as a matter of personal impression that the manhole cover appears unremarkable. Walking down the Strand, or indeed any other urban pathway, one comes across potential tripping hazards all the time. Of course, I accept that these present correspondingly increased risks to the elderly, the infirm or young children. But I bear in mind the words of Dillon LJ from the Mills case, cited above at . I am afraid I cannot conclude that this protrusion was such that "a reasonable person would regard it as presenting a real source of danger". Conducting a balance between public and private interests, I must recognise that highways authorities simply cannot achieve perfection and provide over the thousands of miles of pavement for which they are responsible a surface "which is entirely free from all irregularities or changes in level at all"."
The correct approach of an appellant court to appeals on fact
"Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellant court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence."
Was he right to hold as irrelevant the views of Mrs Rose and Mr Cunningham?
"3. Admissibility of expert opinion and certain expressions of non-expert opinion.
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived."
"Although in general inadmissible, the opinions or beliefs of witnesses who are not experts are admissible in proof of the matters mentioned below, on grounds of necessity, more direct and positive evidence being often unobtainable. Moreover, it has long been thought, and for civil cases it has now been declared by s.3(2) of the Civil Evidence Act 1972, that non-expert opinion may be received as evidence of the facts intended to be conveyed by that expression of opinion. In Rasool v West Midlands Passenger Transport Board an account of a witness of a road accident was received notwithstanding the fact that it contained the words "the bus driver was in no way to blame for the accident". The court treated them as admissible although the 1972 Act did not fall to be considered, and the point was not argued."