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Lawrence v Kent County Council, High Court, 22 June 2011

1 July 2011
The issues

Highways – Section 41 Highways Act – Mills v Barnsley Metropolitan Borough Council.

The facts

The Claimant tripped over a manhole cover which protruded by at least 15mm above the pavement in Newbury Avenue, Maidstone. The measurement was approximate. The highway inspector attending a site visit with the Claimant had not brought a measuring instrument but had used his mobile phone to provide some means of gauging the height.

He found for the Claimant in the sum of £5,000.

The Defendant Appealed, arguing that the Judge imposed too high a standard of care in that whilst he decided that the protrusion gave rise to a risk of harm or was dangerous, he had not gone on to carry out the balancing exercise that was required; and that he misconstrued the inspector’s evidence in that the Judge interpreted the highway inspector’s note that the manhole cover should be “made safe” as some kind of admission to the effect that the protrusion was dangerous.

The decision

The Claimant had not merely to establish that it was reasonably foreseeable that harm would occur because of the condition of the highway, but also the Court needed to carry out a balance between private and public interests, since the expenditure of public funds on highways had to be prioritised and the threshold ought not to be set unrealistically high (Mills v Barnsley Metropolitan Borough Council and James v Preseli Pembrokeshire District Council).

Stein LJ in Mills had emphasised that a mechanical approach to these questions was not to be encouraged and that it would not be right to say that a depression of less than 1 inch would never be dangerous or that one above would always be dangerous. He had emphasised that the law ought not to impose unreasonably high standards otherwise scarce resources would be diverted from situations where maintenance and repair of the highways was more urgently needed. This branch of the law ought to represent a sensible balance or compromise between private and public interest.

The Judge had not misunderstood the nature of the statutory duty or applied the wrong test. He had arrived at an answer which fell within the ambit of reasonably possible conclusions. However, he had come to his conclusion by taking into account irrelevant considerations. Having asked the right questions he was obliged to answer them according to his own judgment and it was not appropriate to ask the witnesses what they thought as opposed to what they saw or did. The witness’s view as to the danger of the highway was formed without any reference to the balancing exercise required or as to the issue of proportionality which the authorities clearly require to be addressed. Closely connected was the Judge’s approach to the evidence of the inspector. First, as with the other witnesses, it was not for the Judge to take into account other people’s views of what was dangerous and therefore by implication what was or was not a breach of the statutory duty. The Judge had to carry out the balancing exercise himself.

Secondly, there was clear authority that the mere fact that work had been carried out did not mean there was a duty to carry it out. This was a non sequitur. In any event, the inspector’s view was not relevant to the issue, else one got to the point where a Highway Authority’s legal obligations were defined not on the basis of judicial determination but according to the opinion of one of its own employees.

The Appeal would have to be allowed. The Court would substitute its own conclusion. Newbury Avenue was a densely populated residential area. There was no evidence of anyone else having tripped at the spot. Having regard to the photographs, the manhole cover appeared unremarkable. Walking down the strand one came across potential tripping hazards all the time. The protrusion was not such that a reasonable person would regard it as presenting a real source of danger. Conducting a balance between public and private interests, it had to be recognised that Highway Authorities could not achieve perfection and provide over the thousands of miles of pavement for which they were responsible, a surface entirely free from irregularities or changes in level.

Appeal allowed.

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