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Taylor v Surrey County Council, Guildford County Court, 6 October 2010

25 October 2010
The issues

Highways – verge – standard of maintenance – Russell v West Sussex CC – Jones v Rhondda Cynon Taff County BC.

The facts

At 8.50am on the 7th June 2006 the Claimant was walking home, having left her son at a primary school. She had done the walk many times and lived around the corner from Copsley Avenue, where the accident occurred. When she reached the frontage of 35 Copsley Avenue, she saw ahead of her a woman with a small yapping dog on an extendable lead. She avoided the woman and the dog by stepping onto the cross over from number 35 to the carriageway. Her attention was distracted by the dog and she put her foot partly on the verge. The verge contained a depression caused by the tyres of vehicles parking partly on the road and partly on the verge. Her foot turned over and she fell, fracturing the 5th metatarsal of her left foot. The depression was some 6 inches deep. The unevenness of the churned up piece of verge where she tripped would have been obvious to anyone walking along a footpath.

Copsley Avenue was inspected by the Highway Authority every 6 months. When the Highway Inspector, Mr Hames, last inspected in January 2006, he recorded the state of the verge in Copsley Avenue as being very poor. He classed the condition as a 5, where 1 was the best and 10 the worst on that scale. Although he noted 9 matters in the road that needed attention, he did not include any part of the verge on that road.

In addition to the routine inspections, inspections might take place if members of the public reported something or a matter needing attention came to the attention of the Authority between inspections. Reports would be made direct or to a Highway Steward, whose job was reactive. On receiving a report the Steward would look at the scene and decide whether the matter needed referral onwards for action.

The Claimant alleged that the Defendant was in breach of its statutory duty under Section 41 of the Highways Act 1980. The Defendant denied that the verge was dangerous or that it was in breach of its duty and relied in the alternative on the statutory Defence under Section 58 of the Highways Act 1980.

The decision

The duty on a Highway Authority was to maintain the surface of the highway. In each case the question was whether the particular place where the Claimant tripped was dangerous. The Court does not impose an unreasonably high standard upon the Authority. There had to be a sensible balance between private and public interest (see Mills v Barnsley MBC and James v Preseli Pembrokeshire BC). The highways consisted of a variety of different surface types. The question for the Court (Jones v Rhondda Cynon Taff County BC) was whether the surface of the highway as a whole was such as to make it reasonably possible for the ordinary traffic of the neighbourhood. There were cases in which the existence of a rut, particularly alongside the metalled carriageway would be a danger (see Russell v West Sussex County Council). All of the cases were fact specific. A major fact was the nature of the part of the highway in question.

The same standard of maintenance could not be applied to a metalled footway and a grass verge. It was true that pedestrians might go onto the verge from time to time but it was not sensible to expect the same standard of maintenance to be maintained. Verges, by their very nature, would have undulations, depressions and differences in height. By the side of the verge was a perfectly adequate footpath. The Claimant stepped aside not because there was no room to pass but because of her concern about a yapping dog. The nature of the verge was quite apparent. Taking all these matters together, the verge could not properly be characterised as dangerous at the point at which the Claimant fell.

Even if the verge was dangerous, the Defendant had made out its Section 58 Defence. Under the Defence, the Court had to have regard to, amongst other matters, the character of the highway; the standard of maintenance appropriate for a highway of that character; and whether the Highway Authority could be expected to repair that part of the highway before the cause of action arose. As far as the state of the verge was concerned it was intended as a amenity feature, not as an area regularly to be crossed by users of the highway. The standard of maintenance to be expected of a verge not intended to be used for passage had to be low. Filling in the ruts on every verge would be a “sisyphean task” to quote Lord Justice Beldam in Rance v Essex CC (Court of Appeal 1997).

The Defendant had a system of inspection and those inspections were carried out. Verges were not specifically included within the inspection matrix but they were not ignored. The inspector noted the verge and did not think it required any works. The probability was that the ruts of which the Claimant complained were created or increased in depth after that inspection. There had been no report from any member of the public after the inspection and before the accident.

In the event the Claimant were to have succeeded, a finding of 50% contributory negligence would have been appropriate.

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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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