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Atkins v London Borough of Ealing, High Court, 17 October 2006

27 October 2006
The issues

Manhole covers – highways – tripping accidents – statutory Defence – Section 58 Highways Act 1980 – what system of inspection was appropriate in respect of a manhole cover which tipped.

The facts

On the 3rd December 2003 the Claimant was walking down Crown Street in Acton when she stepped on a manhole cover which tilted. Her foot fell into the manhole and she suffered an injury to her ankle. Damages were agreed in the sum of £2,750.00. The Judge found for the Claimant at Trial and found that the Defendant had failed to make out the statutory Defence. The Defendant appealed arguing, amongst other matters, that the Judge had applied too high a standard and had placed too high a burden on the Defendant and in particular he had failed to strike the balance between public and private interests which the Courts had indicated was necessary in this field, and in particular in Mills v Barnsley.

The decision

The Judge had noted that the proprietor of the company which carried out inspections on behalf of the Defendant had agreed that if a manhole cover tips, the consequences could be catastrophic and that it would be reasonable for there to be a closer inspection of the manhole covers than the system provided for. The inspector who inspected concerned whether there was a trip of 19mm. Nothing would be done about the manhole cover on that basis because there was no trip anywhere near it. The Judge had to weigh on the one hand the private interest, namely the risk of very serious personal injury caused to a person who is stood on a manhole cover which tilted, and on the other hand the public interest, namely the burden on the Defendant in terms of costs or impracticality in inspecting manhole covers to check that they were secure.

The Judge noted that the Defendant had educed no evidence to suggest that a system of checking manhole covers to ensure that they were secure would be so difficult or impractical that the burden should not be placed on the Defendant. The Defendant had given no consideration at all to the question of how to inspect the manhole covers to ensure that they were secure and not liable to tilt. Their system of inspection was designed to identify and avoid a different hazard, namely uneven pavement surfaces. There had been no evidence produced by the Defendant to prove that loose or tiling manhole covers were so rare that it was unreasonable to expect Highway Authorities to have a system of inspection designed to check whether manhole covers were secure and not liable to tilt if stood on.

The Judge had rightly considered the matters to which he had to have regard to in respect of Section 58 (2). He had considered the character of the highway and the traffic reasonably expected to use it. Crown Street was a shopping street. Jackson v Gloucestershire County Council had been referred to the Court. This was a County Court decision involving a remote country road. The decision in that case, that it was not reasonable for the Highway Authority to have a system of inspecting manhole covers by walking and jumping on them could not determine the outcome of this case. The character of the two highways were very different. The second matter was the standard of maintenance appropriate to the highway. The standard appropriate in this case was one which ensured, so far as was reasonable, that pedestrians were not at risk of falling into a hole which could be large. Much the same applied to the third matter, namely the state of repair in which a reasonable person would expect to find the highway. The fourth matter was whether the Authority knew, or could have been expected to know that the condition of the highway was likely to cause damage. There was no evidence that the Defendant knew that the manhole cover was loose and liable to tilt. Equally there was no evidence from the Defendant that loose covers were so rare that they could not be foreseen. The fifth matter was anything suggested that the Highway Authority could not reasonably have been expected to repair the manhole cover before the accident. There was no such matter in this case. The visual inspection did not identify the manhole but it could not do so and was not designed to do so. Where a Highway Authority was unable to prove the cause of a defect, such as that which had afflicted the manhole cover, that inability was very likely to cause the Authority difficulty in discharging the burden of proof laid on it by Section 58.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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