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Lawrence v Kent County Council, Court of Appeal, 26 April 2012

8 May 2012
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 right approach of an appeal court depended on the circumstances

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.

On appeal the judge found for the defendant allowing the appeal. The claimant appealed to the Court of Appeal.

The decision

Leave to appeal had been given by Dame Janet Smith on the grounds that an issue of principle was involved, namely whether the High Court Judge’s view as to the relevance of the evidence given by certain witnesses was correct. The defendant cross-appealed on the basis that even that if the judge’s handling of the evidence was wrong the decision should still be upheld. The High Court Judge took the view that the County Court Judge had taken account of irrelevant matters and accordingly found himself free to look at the matter a fresh and make his own decision. His approach was that of an appellant court, where, what was under consideration was the exercise of a discretion and it seemed that it was common ground between counsel that this was the proper approach for him. The result in many cases would not be very different, but the Court of Appeal took the view that the High Court Judge was misled in approaching the matter in the way he did.

Although, there were similarities between appeals from the exercise of stet discretion and appeal’s on fact or inference to be draw in from facts they were not the same. The right approach of an appeal court depended on the circumstances. The correct approach had been described by Clarke LJ in Datec Electronics Holdings Ltd v UPS Ltd and was approved by Lord Mance in Assicurazioni Generali v SPA. In summary, where the correctness of a finding of primary fact or of inference was in issue, it could not be a matter of simple discretion how an appellant court approached the matter. Once the appellant had shown a real prospect that a finding or inference was wrong, the role of the appellant was to determine whether or not this was so, giving full weight to the advantages enjoyed by any judge who had heard oral evidence. It was for the appellant court to make up its own mind about the correctness or otherwise of any finding of primary fact or inference from primary fact whilst reminding itself that as far as the appeal raised issues of judgment on unchallenged primary findings and inferences the appellant court ought not to interfere unless it was satisfied that the judge’s conclusions lay outside the bounds within which reasonable discretion was possible. In highway cases the appeal will examine whether the findings of primary facts were justified; whether the judge relied on evidence which was not admissible or placed too great a reliance on evidence; and whether a judge misdirected himself. Even if there was no misdirection the appellant court was entitled to assess itself whether on those facts an inference or finding of dangerousness to an extent which imposed a duty on the council was justified.

The judge had been misled insofar as he had conducted the case on the basis that he was exercising a discretion. Had he be right to hold as irrelevant the views of the witnesses as to whether or not the defect was dangerous? There were many cases in which the courts had approved the judge taking into account the opinions of factual witnesses. In Mills v Barnsley Metropolitan Borough Council Steyn LJ, referred to the unchallenged evidence of the council’s inspector, that if he had seen the defect he would not have regarded it as a problem and would have treated it as a minor defect; in Uren v Corporate Leisure, the Court of Appeal criticised the judge for thinking that what spectators thought about the dangerousness of a game was irrelevant. In Dalton v Nottinghamshire County Council, the Court of Appeal approved the judge for having placed great reliance of the view of the council’s surveyor that a protrusion was dangerous. The weight to be given to such evidence would depend on many things including the independence or otherwise of the witnesses.

It was not reasonable to take Mr Cunningham’s view as expressed in the document he filled in as other than saying that something should have be done simply as a matter of routine maintenance. It was not fair to view his words as amounting to some form of admission as to dangerousness. The other witness in question, Mrs Rose, was the claimant’s daughter and whilst her views were not irrelevant, the County Court Judge had put her evidence higher than she had put the matter herself. If the evidence of Mrs Rose and the highway inspector could not be as put as high as the judge put it, the question was whether there was evidence from which the judge could conclude that the manhole protruding to the extent of 15 mm was dangerous to the extent that there was a duty on the council to have eliminated it. There was not. On that basis, the judge’s conclusion was correct.

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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