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Barker v Lancashire County Council, Court of Appeal, 23 May 2013

10 June 2013
The issues

Highways – cobblestone – cobbles – statutory defence – Section 58 Highways Act 1980

The facts

Mr Barker tripped and fell on a raised cobblestone near a tree pit in Preston at about 5.30pm on 29 October 2007 when it was getting dark. The cobblestone was protruding above the surface of the surrounding cobblestones by about an inch. The judge found that the cobblestone presented a real source of danger to pedestrians which arose from a failure to maintain under Section 41 of the Highways Act 1980. The council had a system of annual inspections of the highways such as the street in question. The judge made no criticism of the regularity of the inspection. There had been no previous complaints regarding the cobblestones in this street. The inspectors were experienced, who the judge found carried out their duties conscientiously and carefully. The last inspection had been on 9 August 2007. The judge found that if the cobblestone had protruded more than 20 millimetres at that time the inspectors would have noticed it. Between the inspection and the accident tree root growth beneath the cobblestone had moved the cobblestone upwards by up to a centimetre. Accordingly the judge found that the council had taken the necessary care required by Section 58 of the act and had a defence. The judge said that he had only considered the individual cobblestone for the purpose of the defence. Had he been able to consider the whole of the tree pit, he might have found for Mr Barker on the basis that there were indications of untidiness and loose cobblestones which might have caused the council to re-lay the whole area of the tree pit. The claimant appealed.

The decision

It was clear as a matter of principle and authority that a claimant in a tripping case had to prove that his injury resulted from the dangerous condition of the highway created by the highway authority’s failure to maintain or repair the highway. For this purpose he had to identify the defect in the highway which gave rise to his injury. It was not enough to show that the general area of the highway was in some way defective. It had to follow therefore that the main focus of the Section 58 defence had to be on the defects identified by the claimant and the defects in nearby parts of the highway did not cause the accident and investigations into them would normally be an irrelevant enquiry. The judge’s speculation as to his finding, were he able to look at the whole of the tree pit, was very speculative. Because of the nature of this speculation, it was not necessary to decide definitively the point as to what had to be considered when focussing on the statutory defence. Despite the engaging but doomed submissions of the claimant’s counsel the necessary findings of fact were not in the judgment and were insufficient for the purposes of an appeal regardless of the issue of law under Section 58. That point required a final decision on another occasion. However, the wording of the 1980 Act used the phrase “the part of the highway to which the action relates”. That phrase was more apt to describe the actual feature that caused the injury to the claimant rather than a wider and more generalised area of the highway which did not cause any injury. It was appropriate to recall the judgment of Lord Justice Steyn (as he then was) in Mills v Barnsley Metropolitan Borough Council in respect of an unremarkable street seen in Barnsley in which he said “it is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed”. As in Barnsley so in Preston.

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