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Galloway v London Borough of Richmond-upon-Thames, High Court on Appeal from the County Court

18 March 2003
The issues

Trip – Highways – Section 14 Highways Act 1980.

The facts

The Claimant tripped on the 26th May 2000 in Manoel Road in Richmond-upon-Thames. She tripped a few yards from her home. She came to a concrete cross-over leading from the road to an access road behind the houses and which sloped upwards from the road. It had to be crossed by anyone walking along the pavement. There were kerbstones at the edge of the highway. As she turned off the pavement into the access road, she fell and injured her right ankle. After she fell, she noticed that her foot was near to a chipped kerbstone. The gap tapered from 31 millimetres to 10 millimetres across the width of the kerbstone. The Recorder found that she had fallen as a result of stepping into the hole and that the defect was dangerous and in breach of Section 41 and moreover that the Defence of the Local Authority under Section 58 was not made out.

The inspection routine required inspections every 6 months. It had been inspected in June and December of 1999 and in August 2000. The Highway Inspector said that the gap in question had not been considered dangerous or requiring repair. The Defendant appealed.

The decision

1. The Highway Authority operated a general rule, that for roads in this category (Class 3) a trip of three quarters of an inch or more would be regarded as needing repair and should be repaired the day after being noted.

2. Whilst the Recorder found that the trip presented a foreseeable risk of harm to users of the highway and ought to be repaired, he had applied the wrong test because foreseeability of harm by itself did not require repair. The next step was to ask whether that particular risk of harm was of a low order, and where the balance between private and public interest should be struck. Because the recorder did not apply the second balancing criteria, he omitted to answer a relevant question. There was no doubt that the gap gave rise to some risk of harm. However, having viewed the photographs, the Appeal Court came to a different conclusion to the Trial Judge and regarded the gap as “unremarkable and not such as to give rise to a real source of danger. Attempting to achieve a sensible compromise between the public interest in the prudent management of limited resources and the private interest of the reasonably attentive pedestrian, the Recorder’s decision had tilted too far in favour of the pedestrian and would be set aside.

3. There was no need therefore to consider the statutory Defence.

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