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Thomas v Warwickshire County Council, High Court, 31 March 2011

17 May 2011
The issues

Highways – whether lump of concrete “part of highway” – Goodes v East Sussex County Council.

The facts

The Claimant suffered a significant head injury when he fell from his bicycle when riding with the Solihull Cycling Club on Sunday 16th April 2006. He was riding along Gospel Oak Lane, Pathlow, Stratford-on-Avon. He brought a claim under Section 41 of the Highways Act 1980 alleging that the highway was in a dangerous condition in that there was present and stuck to it a spillage of concrete which was dangerous to cyclists using the highway. The Claimant argued that the concrete had become firmly bonded to the road and had become part of the fabric of the road, which had caused the road to fall into disrepair. The Highway Authority argued that the concrete was in the same category as oil or mud. The fact that it had solidified into a mechanical bond did not alter that position. There had been no intention on the part of the Authority that the concrete should become part of the fabric or surface of the road because it was common ground that it was spillage which was caused accidentally. The Defendant argued that the concrete was an analogous to chewing gum which might become hard and fixed to the road by mechanical bond.

The decision

There was a difference in kind between concrete which had hardened and bonded permanently to the surface of the road unless, until removed by the action of a road mending gang and on the other hand contamination of the road’s surface by surface lying contaminants such as oil, ice, mud or snow. In the former case the concrete had become part of the fabric of the road, whereas in the latter, it was merely lying on top of the surface of the road. The fact that the accretion was accidental rather than deliberate was irrelevant.

As to whether it was dangerous to traffic, the evidence was that the concrete protruded above the unaffected part of the surface up to a height of 25mm or 24mm and that the largest spill was approximately 1 meter long and 10 cm wide. Having regard to its size, height and its position right in the middle of the carriageway, and notwithstanding the absence of previous accidents involving the patch, was that it was such a danger, and particularly to a cyclist. This was notwithstanding that the concrete came within a class of “defects” in the manual in respect of which the inspector had a discretion to report or not. (The discretion would have been removed if it had been larger or had a significant vertical face.)

The resource implications of this particular spillage (although no evidence other than assertion had been put before the Court on the point) would have been minimal, contrary to those assertions, both in terms of reporting and taking remedial action. On the evidence this was not a case where the balance between the public and private interest was tipped unduly in favour of the private and against the public by characterising the spillage as dangerous in the legal sense. As to the Section 58 Defence, there was no doubt that the system which the Defendant had in place for conducting safety inspections of the road met the requirements of Section 58, both as to frequency and the way in which the inspection was carried out. It was clear also that the Defendant did in fact carry out the inspection in accordance with the manual. The difficulty for the Defendant was that their either was or would have been a deliberate decision by the inspectors not to have reported the spillage pursuant to their system. Since the spillage did constitute a danger in the legal sense, it had to follow that the system would have failed to have picked up a dangerous defect and therefore the Section 58 Defence would not be available if the spillage was already there at the time of the last of safety inspections.

On the evidence the spillage had been present on the date of the last inspection and the Section 58 Defence was therefore not available to the Defendant. As to contributory negligence, the Claimant had to bear the preponderant part of the blame. If he had been travelling at a safe distance from the cyclists in front of him he would have been able to see what was coming up in sufficient time to have made the minor adjustment to his course which would have enabled him to avoid running into or over the concrete spillage. Contributory negligence would be assessed at 60%.

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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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