Hello and welcome to this webinar on highway claims My name's Niki Carter on. We will be looking at a number of facets off highway Keynes Thought we talk about highway slipping and tripping. I thought we'd have a look at the highway statutory duties with scope in the application of the duty on within that will be taking a look at Section 41. I will be taking a look at Section 58 defenses on, particularly addressing the issue of whether or no sort of budget defense that's called it that is realistic for highway authority. How successful is that likely to bay? We'll also be taking a look at the definition off the highway because sometimes it could be difficult to decide whether what you've actually got is a claim against the highway authority or perhaps another country, maybe an occupiers liability claim, maybe even in certain circumstances, a claim against acclimates employer trying to decide what kind of claim it is whether or not the accident didn't happen on the highway on a look really at this situation concerning ice and snow on whether or not I, where authorities are responsible, whether has been unsafe buildup of ice and snow on the highway and the extent of that reason just looking a lot of that, I just I think the first problem really wish you'd think about is what kind of claim you have. Because the first issues to try and design did the accident actually happen on, ah, highway maintainable at the public expense. So, you know, we know that for section 41 of the Highways Act to kick in the highway in question has to be one. It's maintainable at the public. Expense, in other words, has been adopted. Is it a highway? We'll look at the background to that issue. We also need to think about whether or not this could in fact, be a claim against unoccupied. So whether it's a claim for accident that happens on private property owned by unoccupied other than on the highway authority and if that's the case, easy a situation where the claim was a lawful visitor. So the 1957 aka Possibility Act applies, or could it be a situation where we're looking at unlawful visitor on? It was a trespasser under the 1984 act. The other possibility is it might be a landlord tenant type claim. So whether or not the defective premises Act 1972 is the appropriate place to go again. In those circumstances, they forget duties owed in respect off faults. If you like in premises, will not only be owed to tenant the landlords tenant, they'll also be owed to visitors off the tenant. So it's possible. But it could be a defective premises claim. And, of course, Marcia's. We said it could be are playing for a work up for somebody? I could said accidental work, Not necessarily employees like because he came but claim for somebody who's working at the time. The accident happens so all those issues are relevant on and deciding whether or not the claim occurs. The accident occurs, Let's say, on the highway maintainable public expense is really the very first question on, despite comments from cases you like collection and Pembroke share from 2003 comments as you consume your slide from Nordic Clock common law, are highway is away, over which war members of the public have the right to pass and re pass without hindrance. Despite those words, one of the issues we have to come to with is well, is it possible for a highway to be created simply by the exercise of you, like off the common law? Or must the highway be formally adopted as such by the highway authority before there's any section 41 duty to maintain? All right, one of the issues I think that arises is this issue off whether or not Section 36 of the 1980 act is going to be relevant now, remember, that section of the act says, unless some events occurred, which changes the situation. Highways which were maintainable at the public expense under former 1959 act continue to be. Such highways aren't section basics to also specifies types off highway, which, for the purposes of the act, will be highways maintainable at the public expense to get some clue as to what the definition might. Hey, what is clear, I think, is that the section really makes it obvious and indeed the case of Mexico obvious that he seems older cases and we've already mentioned Gullikson. Pembroke show suggests that whether our highway was formally adopted as such by the highway authority might be less important than whether it was treated as such in the common more sense. So cases like *** and suggest the highways maintainable public expense can perhaps come into being, as a result, off just the common law. The fact that they used is such for a long period of time, I'd argue, we'll see in a moment that more recent cases throw some doubt on this and suggest that that actually may no longer be the case on a five ripped be ah highway maintainable at public expense. We need to see that highway has formally adopted under the 1980 act. And if it isn't that the highway Authority just know her a section 41 duty in respect of it. One of the problems with with sorting this out is that we tend to get a bit of our overlap on. The overlap, really is along the lines that if you compare, for example, case of Gullikson wears cases like McAllen on the Northern Island Housing Executive Trust can not near case. What you see is that in MacGowan, the court decided that land on owners have no duty to public to maintain a public right of way over their land. now, if we compare that with the principle that we know exists, which is highway authorities don't occupy footpaths on lands owned by others, although they may have a starched reduced to maintain it. We find that potentially we have a situation where a claim it could trip and fall on an area of ground where the highway authority will be suggesting, well, it's not ours because it's never been formally adopted under section 36 of the Highways Act on that private owner may saying, Well, I'm sorry I don't have any duty to maintain it but causes a public right of way over it on the claimant. Then the argument has no redress whatsoever. Despite the older cases and despite the idea in Gullikson that highways could come into being simply by the exercise of the public, using that area is up as a highway over a long period of time. In other words, in the common more, What seems to be clear is that we now know that Ah highway will only come into existence. Section 41 obligation of the Highway Authority will only come into existence once the highway is formally adopted and we see that from cases like Lee and Devon from 2007. Highway authority not liable for injuries sustained in tripping accident it personal footpath The path was not a highway maintainable public expense under the highways at 1980. That's not the case, Then there simply is no duty under Section 41 for the Highway Authority to maintain it. In that particular case, the court sets clear from section 38 of the Highways Act. It was simply no enough that the local authority have built a road or path under its statutory authority. But it also had to be a highway in order to be maintainable at the public expense. In other words, we're looking at whether or no adoption has taken place. Exactly the same decision. Slightly different facts. That same decision was reached in young um, Earth Otisville. Couple of years later, local 30 Again, Not liable in negligence or under the Occupiers Liability Act 1957 Bridge that fall apart. The highway should not been adopted by the Highway authority, so no repairs or obligations arose under Section 41. So it seems clear that adoption is going to be necessary before there's going to be any section 41 duty on if we had any doubt about that. The case of Floyd and Red Card, which went to the Court of Appeal in 2009 made it clear. Hello, a footpath refer to integrate in an agreement under the Highways Act. Section 38 had not been made into a distinct footballs. In other words, it had never actually been constructed. He had in fact been adopted by the local authority on the judge, have all initially been wrong to dismiss it claim for damages for personal injury following a tripping accident based on the local authorities. Breach off statue duty under Section 41. So it's clear that even in circumstances where the highway have never in fact with football never in fact been constructed. The fact one had been adopted was a what mattered. So it's quite clear that adoption is the key issue, and that's what becomes important in deciding whether or not the highway authority is the white defendant we saw recently in case school Barlow from Wigan Council on. In this particular case, you'll see that a local authority cross appealed against are finding that section 36 on the highways that could apply toe highways constructed before the act came into force. In this case, the appellant tripped on a public path in a park owned by the local authority on the judge found that the path was in a dangerous or defective condition, but concluded it didn't come within the meaning of 36. Section 36 of the Act land have been purchased by the council's predecessor, a predecessor to the local authority, and the part was constructed in the 19 thirties. It wasn't disputed that the local authority was, ah high vague authority. Along the path was a highway. The issue was the duty on the Section 41 of the act on the Relevant Highway Authority to maintain A my way was owed in respect of a highway maintainable at the public expense, the judge held the path become ah highway through at least 20 years usage pursuant to Section 31. But but in order for section 36 to to apply, the highway had to have been constructed as such at the time of its construction, had to have actually been built that required an intention to dedicate it as ah highway on part off the highway authority. There was no evidence regarding the district Council's intention when it created the path. The idea being then section 36 2 didn't require a proof of intent, said the claimant to create highway at the time of construction on the climate argued it was enough. The path was constructed at the time of the accident become a highway on that it had been constructed by AH highway authority. This is the claimants appeal against accountable decision that the public path was not, ah, highway maintainable at the public expense. Let's take a look at the decision. The court took the view that there was no reason and statutory language principal case of all why the instant path could not fall under section 36 2 because only became a highway after long usage not been constructed as such at the outset, the local 30 Arctic. Even if the District Council was a highway authority when constructing the path, it was not acting a such but acting as a local authority. However, if it was necessary to ensure the local authority which constructed the highway have been acting is a highway authority at the time, it would be a difficult task to prove it's quite clear that in this particular case are the issue was any investigation of which the particular hat the local authority was where it time was susceptible to uncertainty and susceptible to arbitrariness, Insofar as the result could depend on a particular department handling the matter at a particular time, I would be very difficult to identify. Provided the relevant local authority at the time was, among other things, ah, highway authority that was sufficient for its construction highway to attract the operation of section 36 to 8. No reason on language or logic for an additional capacity. So it's interesting that this particular decision makes it clear that if the highway is constructed by the highway authority by local authority, who at the Times, among other things, on highway 30 that was clearly sufficient for its construction of the highway to attract the operation exception 36 up to and that was the reason for any other kind of decision, that's interesting the claim it was successful. In this particular case, one of the issues that rises is the question of whether or not we can decide where the highway begins and where it ends. What's clear is under Section 263 the highways that that it's clear under that section of every highway maintainable public expense and it goes on sake, together with the materials and scrapings off, it rests in the authority who are, for the time being, the highway authority. Clearly, that means that strips of grass bordering the metal part of the main road will be included. Clearly, Section 1 30 goes on to talk about the duty of the highway authority to protect the rights of the public to use the highway and also include any roadside waste which forms part of it. So certainly roadside wastes eighties of the V of the road are covered. In addition, we know that grass bordering that into the highway is likely to be considered part off the highway under the heading roadside wastes. So what we need to see is that the highway isn't necessarily simply the road carriageway and maybe verges that will be covered by this. And we see from the case of Thompson and Hampshire County Council from 2000 and four that the court considered in that particular case, but the claimant who was using a a path on the verge of higher rates of beaten earth path on who slipped off the path when she strayed from the path by just a step or two on federal. The court decided in that particular case, the highway authority was not responsible under its statutory duty to maintain highway, but the highways layout. Clearly, the business of path was, ah, highway proceed into the act. But in terms of the highway authorities duties what we're reminded about his highway authorities only have a duty to maintain rather than a duty in respect, for example, of lay out. One of the claimants are complaints in it, in this particular case was that it was the location of the path on the proximity of their path to addict. On one side. Cause the problem. Highway authorities will not never have been responsible for interfering with highways layout simply repairing structure. And that's a really quite clearly defined duty. And we see it in the case of Rolince and a few years ago, Dudley Metropolitan Borough Council, where the question raised what does the Section 41 duty to maintain highway include the removal of Muslim highway, the claimant slipped on Moss that formed on top of the highway. The issue waas was that covered by the Section 41 duty to maintain it off. The court's decision eventually waas that that that it didn't The court took the view. That mosque, whether it puts down roots or not, doesn't actually fall apart off the highway itself. It's an extraneous substance sitting on top of it. Consequently, it's no going to be covered under the Section 41 duty to see the sort The extent of this, we really need to look at cases like Thomas on Warwickshire. A case went to Birmingham County Court in 2011 and in that particular case on the climate was successful in this came under Section 40. Money gets the highway authority arguing that spillage off concrete concrete that actually moulded itself to the structure of the road that caused him on his bicycle to come into collision with it. Sitting on carriageway. The argument falls because the spinach, of course, create between 20 and 30 millimeters high was actually endearing to the road, actually stuck to the fabric of it. He did come within the Section 41 duty off the highway authority. The issue really being had that piece of concrete been freeze freestanding. So, in other words, had it not being attached to the road, the claimant would have been unsuccessful. So it's clear rarely to maintain repair. The fabric is a lot about these central structure of the road, rather than extraneous substances sitting on the surface of it, with 41 duty to been breached, we need to see a failure to maintain or failure to repair on what constitutes a lack of repair in most cases is going to go on to consider the point off the Section 58 defense, and the court will tend to consider this. At the same time, we know that for the failure off repair to be actionable, it needs to have resulted in danger on we bring us how difficult, really that leads to establish how difficult it is to be clear about when you see cases like Kent County Council on Lawrence. In that particular case, the opinions that you did that were opinions by the claimant, her witness entity, the Highway Inspector war, gave the judge their opinions on the dangerousness off the defect on which the kind of tripped over a manhole cover protruding. The court, on appeal first year appeal, decided that the opinions of those individuals were all very interesting. But the judge should have made his decision about what was dangerous rather than taking into account the views of witnesses, even if one of them was the highway inspect. This is a decision for the judge, and I think that's why it makes it so difficult to call. Difficult to be clear about, because it's very difficult to know what a judge will decide in any given case. And Wolf on the council bar of Kurt, please. We saw a claimant appeal against the dismissal claim of first instance. The facts were the claim was some injured When she was cycling, she followed her partner onto a roundabout, struck a pothole, lost control and suffered injury. At first instance, the judge accepted she'd fallen as a result off getting home on the claim. Newell's, however, dismissed on the basis there was insufficient evidence to say it presented a real danger. I look, I looked what test might be for real danger, what reliable evidence was there dimensions or condition of the home to say was more likely than not that it presented a riel source of danger. And that's because it's not possible, really, to work out what effect the road material under the tape measure, together with the road material in the area nearest to the Roundabout, had all the measurements of the pothole. I'll be using photographs or enlarge copies of the same photographs on what's clear is it's apparent. The judge took careful note of relevant evidence placed considerable reliance on the evidence of the inspectors were making, finding that Miss Wall should not prove the pothole presented a real danger. All this is question, in fact. But the judge on the problem on appeal, of course, is that it's It's not a question of whether there's a juice, a justice, you know, justice, error, if you like, of approach, which means that the appeal judges likely to set that aside. We know from this case what claim it needs to establish is the highway was in a condition that is dangerous to tropical protections on that dangerous condition was created by failure to maintain or repair that highway. An injury resulted from that damage. Key points We know photographic evidence needs to be provided off the defect. Photographic evidence needs to be clear. The photographic evidence needs to show the trial got to the dimensions off the defect, and it doesn't as in this case, it will be clear that the claim will be unsuccessful. On the court took the view in this case that the photographs taken by the council's employees almost entirely useless in the view of the judge. Photographs provided by the claimants partner were limited assistance due to the fact they failed to consider the effect of material within the pothole. The impacted on its ability to accurately assess its dimensions can't stress enough. The quality of the photographs is key. Close up ones of the defect photographs indicate in the dimensions of the defense, the deck showing a reenactment, perhaps of the kindness full, moving, its footing on the defect photographs of the foot way photographs showing the wider area around the defect. What kind it's can expect consider is that they may receive Part 18. Question the defendant. But don't forget to think about the possibility of using the Part 18 route to request defendant particularized the route it's Highway Inspector took on the last inspection prior to the accident. It's something claimants can do. We know defendants are likely to use Part 18 quest. We know that it's a common tactic. If you like the defendants to use their most likely toe ask questions like, Where were you heading? Where were you going? Where'd you being described? How you came to lose your footing in detail. Did you slip? Did you trip or did you lose your footing in some other way? In what direction did you fall attempting to pin the claimant down detail as to exactly how the accident happened? On course, The advantage to put in these questions to the claimant but an early stage is that it pins the claimant down to a single case early on. One of the key issues when investigating these cases is to take a look at the code or practice that the highway Authority follows on local authority. Highway authorities Intervention levels will either be their own. They may have their own intervention levels. They are different intervention levels. Depending on whether we're talking highway or pavement, They may have that at a blanket level some highway authorities do. It may vary according to the categorization of the area. For example, is it a main shopping area or in a particular locality? I see I outside school, for example, the sorts of things that could be relevant. I think we could be clear and assessing danger. Things like clearly measurements, whether it's a shared trip, is it a rocking, paving stone? Are they combined hazards, for example, tree roots or separate surfaces? Where is it? Where is it? Is it near toe a pedestrian crossing, for example? How busy is Theo? What can footfall? Does the area get on the overall impression? Really? Photographs etcetera will establish them. What's clear is in Mills and Bonzi back in 1992. Still, the case, the test of dangerousness, is one of reasonable foresight of harm to uses off the highway, and we were told back then, it's still true, isn't it, that this is a situation where each case will turn on its own facts? We talked a bit about the verge on the carriageway. Um, being potentially part off the highway on the issue, of course, may arise, not whether it's part the highway the verge. But what standard is applicable in West Sussex and Russell? An interesting case with a claimant, in fact, left the carriageway having lost control of her vehicle on found herself on the on the Verge. If you like the edge of the road, I've found herself losing control of her vehicle when the vehicle's wheels went into a a drop between six and 12 inches between the Virgin, the carriageway. The interesting question to be asked was What standard of maintained maintenance and repair was necessary off the carriageway? Reclaim. It was successful in this claim just simply on the basis that in a previous repair to that 6 to 12 inch drop, if you like by the highway authority, the court to review clearly, the highway authority considered that there must be some need to maintain that area highway. Otherwise, why carry out previous repair on DTA? Anticipate that some road users are going to leave the carriageway include circumstances or bad that needed to be appropriate measures in place. If they did, danger wouldn't be presented to them. Having looked at the Section 41 duty, one of the things we need to consider is the statutory defence. There it is. Section 51. The authority had taken such cares and all the circumstances as was reasonably required. It sets out particular facts. In other words, the onus is on the highway authority to prove the defense on the balance of probabilities on, we know that the court section goes on to talk about in subsection to the matters that the court will have to take into account when considering it the character of the highway. Who's going to use it. Standard of maintenance appropriate for that highway state repair in which a reasonable person would have expected to find the highway? Did the highway 30 new or could reasonably been expected to know about the condition of part? The highly and the danger of my cause on with the highway authority couldn't have been expected to repair highway. What warning notices did they have in place? Evidence for Section 58 defense. The highway authority is going to be expected to show. Do they use their resources for routine maintenance and repair? What are the issues relating to classification of the highways, how the highway authorities classified the inspection frequency of each classifications highway? What's the criteria. A lack of repair on the prioritization of the repairs. Take a look up. Whatever code practice, code of maintenance, the higher authority it is too. Has it reached its own code? We know the code. Start up statutory force. But evidence that breach or the highway authorities own code could be evidence or falling below the required standard. So the highway thirties got have to establish the shed road inspections. Why was the area categorized as it waas? Is the inspection frequency insufficient for other reasons? For example, are there features at schools or pedestrian funnels? Busy underpasses which would suggest that things should happen. Ah, little more frequently than they in fact, do key questions. How often did they actually inspect the area before the accident may know what their intentions were on What should have happened? How long did they actually inspected? How long after the last inspection did the accident happen? Another key feature is how long did it take highway authority to repair the defect? Once it was reported, I could often be good evidence about how efficient their systems are proof off the operation of the system in a particular case, will need evidence from the highways inspector evidence of how or when any defects were repaired on questions of prior knowledge defects. What about previous reports? Just as an example where this could go wrong for our way authority case of day And Suffolk went to the Court of Appeal some years ago, looked at a case concerning ah, pothole that the claim driven into it some speed in his vehicle. The pothole was obscured by ice and snow on the claimant had injuries when his vehicle went into the pothole on the air bag was deployed, causing damage and injury to climate. The evidence was a previous highway inspections carried out at 25 MPH, with only one highway inspector in the vehicle. At the time, the court took the view That's far too fast to carry out a proper drive by inspection and, of course, far too fast. If we've only got one highway inspector in the vehicle at the time, looking into the types of inspections that been carried out could be really useful in Cincinnati, Islington, the court looked at What would you expect a highway inspector to do as a preliminary to carrying out the inspection and in this case the court thought it wasn't too high. Standard along highway authority to say that serious defects on residential road should reasonably have triggered further investigations such as writing on the curb sites, causing person injury on. Had the highway inspector taken the trouble to ensure vehicles which were parked on the road during the inspection were moved prior to the inspection, then a proper view would have been taken on. A proper inspection would have been taken on inspecting a highway authority inspector to arrange the vehicles to be moved is not unduly high standard to apply to the highway authority for the defendant. Evidence might well come in the form that the defect wasn't present when the last inspection occur because had it been, it would have been logged and dealt with. Sometimes defense can occur very quickly things like poor weather, things like Mick and override things like excessive pedestrian traffic. There might be lots of reasons why a defect would come into existence quite quickly, but claimants payments of witnesses are going to try and get evidence that the defect was in place for a period of time that might come from witnesses. It might come from clear evidence, for example, things like tree roots pushing through a paving stone, which indicate development over time. It might be evidence of earlier, ineffectual repairs, which has deteriorated. Might even be the cases serious enough evidence from experts. We saw that in 17 58 in subsection two of that section, but warning signs the presence of warning signs might indeed be something the highway authority appointed to show and met their duty. Lots and lots of debate about whether permanent warning signs will be a factor the court should take into account when looking at SECTION are 58 defenses. It's not really a realistic option. The problem. The Highway authority will be by placing a warning sign. What they would be doing effectively would be to would be admitting the sexually 41 defect. If you like. On the danger involved, that's unlikely. I think we're going to see anything off that kind in Wilkinson and York. Let's examine the parameters off the highway authorities realistic defense. We know that deviating from the national code of practice for the maintenance of highways off itself is not necessarily going to be ah lose if you like for the highway authority. But if the only reason that the highways authority had departed from the national code practice for the maintenance of highways was budgetary considerations, then the Section 58 defense is simply not available to in the absence, said this case off any reason other than financial for departing from the national code that would be inadequate. Remember, the defense is stripped defense. It's either there or it's no reasons for failure, all no relevant on. By the same token, we saw a similar issue being argued in A C and Devil in 2013 in the Court of Appeal Again, the court taking a view that departing from the code whilst of itself not negligent, departing from the code reasons, will not giving any basements in this particular case, didn't give any reasons financial or otherwise tends to suggest that high weather it has fallen below the required standard. Just examining what might a proper system be? Just want to mention the case of cruelly Barnsley hit called Pain in 2017 where a local authority system whereby reports potentially serious defects in minor roads reported by members of the public on Friday afternoon or over the weekend were not dealt with by anyone until the following Monday. The court considered that system inadequate when somebody had called up on Friday afternoons. Report. Serious defect in the highway in the claimant fell in that defect. On Saturday evening, the court took the view Highway Authority system was inadequate again. Issues off finance budget just not relevant to the making out the appeal, the court took the view that was really risk Report made to the local authority about a Category one defect was not doubt. Whether wouldn't have been dealt with until Monday morning represented an immediate or imminent hasn't on the claim of more successful danger of failure to maintain. I think local authorities who struggled to try and show a taken such cares was reasonably required. They're going to struggle. I'm going to struggle to make out their defence when it becomes clear that after the accident has happened in the case of Dalton, the repair was carried out within 24 hours on and styled up as an urgent category one defect. In this particular case, we're talking about a block paving issue, paving blocks which was unstable. The court, taking a view a loose, unstable block relative to its neighbors, was perfectly capable of amounting to danger. On the fact that the highway authority took the view immediately after the accident, it amounted to a danger effectively made claims case out for him or her. Just to finish duty in relation to ice and snow is their duty to clear. Isis now will take preventative measures are under the highways act. Yes, there is a section 41 1 a of the Highways Act says so far as is reasonably practical, safe passage in on the highway should not be endangered by ice and snow on the highway. Authorities to ensure that reasonably practicable, however we know involves issues off cost from budget. And this is that a defense that the highway authority will be able to argue that limitation of budget limitation of finances, his own argument in their favour climates might consider they need to prove only the fact of their evidence in fact, of their accident, and it was caused by ice to establish a from a face sheet case. But the problem will bay if the highway authority can show they have a reasonably practicable system in place. What would they do? Weather conditions, Keeping an eye on the warning off them or winter safety policy, including hierarchies of gritting and salting and steps actually taken, which may be limited by budgetary considerations. Thes cases are extremely difficult to win. Kind. Mince. All the defendant really needs to do is show they took some steps to define the nature of the road. They looked at the nightly usage of it. They had a standard of gritting salt in your clearance. They listened toe weather warnings on placed warning notices in place. They go into safety plan. They got generic documents or guidance on evidence the gritting and salting program was in place. Weather reports on records off the exact writting consulting was actually taken. One last word. Finish up this particular weapon are new rt a process. Clearly the rt a process does not apply to claims where the bridge of duty was owed to road use A by a person who is not a producer. Put Ardley strictly speaking, highway authorities and all road users. On these section 41 pothole type claims vehicles are maybe not claims that need to be started under the Your TA Process. Recent case law suggests that even if technically some of these claims don't belong in the process, claimants, maybe a riel risk off, not starting plane in process. I'm starting In a part. Seven Rina are to draw your attention to a case called Press Court on the trustees at Penn Carrow that suggests that even if technically you don't fit in the protocol, it may be wise, of course, to consider started playing the protocol on leaving later. With that, I guess we would argue the inevitable denial of liability as it a sexual beauty will no doubt receive hope. The weapon has been helpful. That's the end of that for today, Thank you very much.
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