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Harrison v Derby City Council, Court of Appeal, 21 April 2008

30 June 2008
The issues

Highways Act 1980 Section 41 – tripping accident – Statutory Defence.

The facts

The Claimant was walking along the pavement in Derby on 7th August 2005 when she put her foot in a pothole or depression more than an inch in depth. She tripped, fell on her wrist and damaged her knee. The matter came before the Judge who found the Council liable. The issue for the Judge was whether the Council had proved that it had taken such care as in all the circumstances was reasonably required to secure that the pavement on which the Claimant was walking was not dangerous for her to walk on. The footway was inspected every 6 months. The last time it was inspected before the accident was on the 9th May 2005, almost exactly 3 months before the Claimant fell. The inspection involved the highway inspector walking down both sides of the road and filling in a document called a “Walked Safety Record Inspection Record”. He found 7 defects in the road on which the Claimant fell, using a criteria of 25mm depth. None of the defects were where the Claimant fell. At Trial, the thrust of the Claimant’s case was that the footway ran above cellars in the road, which presented a particular danger because of the risk that they would “collapse” or cause the carriageway above to fall in slightly, causing depressions. The Claimant alleged that because of the potential risks the Council should have carried out a risk assessment to assess the nature and extent of the risks and in order to determine the appropriate frequencies of inspections.

The Judge, in his Judgment focused on a failure to carry out a risk assessment and concluded that the failure to do so breached the “Well Maintained Highways Code of Practice for Highway Maintenance Management” issued by the Road Liaison Group of the UK Roads Board. He also concluded that if he was wrong about the risk assessment, the Council had not established that a period of 6 months was a reasonable period for the inspections given the fact that the potholes caused by defects in cellars occurred suddenly over a short period.

The Defendant Council appealed to the Court of Appeal.

The decision

Each case depended on its own facts. One of those facts would be the particular risk involved. The Council had to have regard to all the circumstances of the case, including those listed in paragraphs a – e of Section 58(2). The paragraph relied upon by the Claimant in the Code of Practice related to classifying which category a particular footway should be put into. No-one had suggested that the category into which this footway had been put was wrong. “Collapse” in respect of the cellars did not mean catastrophic collapse but collapse sufficient to cause a pit or indentation, which was the subject of this claim. The Claimant’s highway inspector had given evidence but only a hand full of problems had been caused by cellar collapse, in comparison to some 4,000 potholes which had been formed by other causes. It was not therefore reasonable or proportionate to introduce a different inspection regime from that which it used for the majority of potholes. The Council had taken such care in all the circumstances as was reasonably required to secure that the footway was not dangerous to pedestrians, it was simply an application of Section 58 to the particular facts of the case.

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