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Dalton v Nottingham County Council, Court of Appeal, 6 July 2011

25 July 2011
The issues

Highways Act 1980 Section 41 – Highways Act 1980 Section 58 – tripping accident – pedestrianised area.

The facts

On the 20th October 2006 Karen Dalton stumbled and fell whilst walking across a pedestrianised area in Beeston Town Centre called The Square. She said that she had come into contact with a loose, raised and wobbling paving block. She sustained a serious injury to her left leg. The Highway Authority bore responsibility for maintenance of the paved area.

The matter came before the Judge who found the Council liable to Mrs Dalton. The area was one covered with paving blocks laid in a herringbone pattern, each the size of a traditional house brick. The area where Mrs Dalton fell was a rather messy area of paving in the sense that the herringbone pattern in which the paving blocks had been laid had been obviously and unattractively compromised in order to allow for four utility service valves, each surrounded by concrete blocks laid parallel to the sides of the covers. Where the parallel blocks met the herringbone pattern there were a number of irregularly shaped part blocks inserted to fill the spaces which will result. The whole area had an unpleasant and untidy patchwork appearance. It was accepted by the Defendant that there was inevitably the potential for a part block laid in such an area to work loose, particularly, as was the case here, the area was regularly crossed by delivery vehicles. It was an area attracting the need for particular vigilance in inspection, firstly because of the issue of the part blocks and secondly because the area formed a natural route between the Town Hall complex and the pedestrianised shopping area.

After the accident the Claimant’s husband had taken a photograph of the area. He found a triangular piece of block which was very loose and raised relative to its neighbours and which had weeds growing around it. The Judge accepted his evidence that when he stood on it and touched it, it was moving and rocking. The Judge had been satisfied that the part block photograph by Mr Dalton and identified by his wife was the block over which Mrs Dalton had stumbled. Prior to the accident there had been no public liability claims relating to the square since March 2000 and there had been no complaints about the condition of the square or any reports of any accident occurring there since April 2005. It was inspected on a monthly basis by a Highway Inspector walking the area. The area was inspected 9 days before and 11 days after the Claimant’s accident and nothing untoward was recorded. The intervention level was set at 20mm.

The Defendant Appealed on the basis that the Judge had failed to make a finding as to the precise extent to which the block would wobble; that the Judge had not made a specific finding as to the precise mechanism of Mrs Dalton’s fall.

The decision

The Judge’s finding had been that the Claimant had stumbled on a loose and wobbling paving block and had overbalanced. This finding was sufficient to embrace both the height differential and the circumstance that the block was loose and that it wobbled as being causative of her fall. Whilst walking on a country path or track one could reasonably expect to encounter stones underfoot on which one might either trip or be thrown off balance because they wobbled or shifted. Whilst walking on a urban pedestrian area one had to be aware of reasonable height differentials. One did not expect the structure underfoot to be shifting in nature. To require of the Judge a finding as to the extent to which the block would wobble required a scientific enquiry and the degree of precision going far beyond anything suggested as appropriate at the Trial.

The condition of the block on the 20th October 2006 was dangerous in the sense that in the ordinary course of human affairs the danger might reasonably have been anticipated from the continued use of that area by the public. The block was loose, unstable, wobbling, proud of its neighbours and were over its height relative to its neighbour was capable of being altered. It had the potential to wobble underfoot and cause a pedestrian to overbalance. The Judge’s findings on dangerousness and causation could not sensibly be challenged.

The Judge had observed that after the accident the grading of a need for a category 1 repair was tantamount to an assessment by the inspector that the highway was dangerous. The Court of Appeal did not think that by making that finding the Judge had lost sight of the need to make his own independent assessment of dangerousness. The issue of a category 1 repair order was a powerful pointer to the correctness of his conclusion. Where a Council had an inspection and maintenance regime couched in terms of the identification of an immediate or imminent hazard, the identification by the Council of a defect so defined was obviously powerful evidence of the presence of a danger against which the Council could be reasonably expected to take steps to safeguard the public.

As to the Section 58 Defence, it was obvious from the photographs alone that the block was both proud of its neighbours and probably insecure. Its visual appearance cried out for closer inspection. Indeed, it called out for a closer inspection of the sort which the Highway Inspector had himself described as both prudent and his normal practice. He had said in evidence that due to the location it was always prudent where there were service valves or utility apparatus around to put your foot on the surrounding materials to ensure that they were stable. The Highway Inspector had not done this in the course of his inspection. The Judge’s conclusion that the Highway Authority had not shown that they had taken all such care as was in all the circumstances reasonably required to secure that the paved area was not dangerous and that the Section 58 Defence had not been made out was unsavable.

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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