Highway Claims S.41 Duty 2021 - A Important Guide
Hello and welcome to this webinar on highway claims. Um I'm going to talk about section 41 duty. Um My name is Nikki carter and let's start by talking ourselves through what we're going to cover today. I wanted to talk particularly about the highway statutory duties and what I mean by that really is the sort of scope and application of that duty. And obviously one of the first things to think about is the statutory duty Under Section 41 of the Act. You know, what are breaches of that section? What what examples do we have of the courts deciding that that duty has been breached. And we need to define it and then we need to decide what it is. We need to establish to show a breach of that duty. Um I think we need to talk a bit about definitions so we need to decide when is a highway, if you like a highway um when is it going to be um private land, when is it public land? And where are we with that definition? Because it's really really important to make sure we get the right defendant and of course the right arguments. I wanted to say a bit about road defects uh in the context of road traffic accidents and that then leads us onto a word about the R. T. A. Process. And I wanted them to talk about um the situation because I guess in terms of timing it's coming up now the ice and snow uh the obligations if you like on the highway Authority in relation to keeping ice and snow off the highway. Um, I got a few things to say about investigation tactics, say some comments really about how we put together our, you know, investigations, how we would, you know, what documents we might want, how to get that information and I guess the circumstances in which there might be a non section 41 duty. So what other duties might the Highway Authority? Oh, if it's not the sexual section 41 duty, what is it? What do we mean? Um, I think the idea is to look at some natives case law and make some definitions and hopefully put us in a position where we're in a better place to decide which claims to take on and you know, which claims are going to be effective, Which claims are going to be successful. Hopefully. Um, one of the first things I think to, to comment upon is the definition of a highway and it's really to try and decide, you know, is where the accident has happened is the locus of the accident. A highway maintainable at the public expense. Is it to be a high waist claim with the highway Authority is our defendant. And you know, we certainly have some examples and we'll look at some of them, particularly a case called Gulliksen and Pembrokeshire but far from new but still, uh, A defining case back in 2003 in terms of when is a highway maintainable at the public expense and we'll bring that bang up to date and we look at a very recent case that's looked at the whole situation. Um You remember, I'm sure the Gullickson case concerned a claimant who tripped over a manhole on a footpath running through a housing estate which had been built by the council's predecessors. Um And there was discussion in the court of appeal about the fact that the footpath may have been dedicated from the start. In other words, when it was actually constructed as a highway in the common law sense, with Lord dip lock commenting a common law, a highway is away over which all members of the public have the right to pass and re pass without hindrance. So that's our first question or could it be that the accident has happened on private land? So could it be that the accident occurred on property owned or controlled by a private landlord or an individual business or an individual? In fact, so whether or not the Occupiers liability Act, maybe the 1957 act, if you claim it was a lawful visitor or um if there are concerns about whether the claimant was or was not a lawful visitor. The 1984 at the so called trespass action was the claimant somewhere they didn't have permission or a license to be. And if so, would the claim be brought under either of those acts with 1957 out of that section two duty, reasonable care, reasonably safe for the purposes which they are permitted to be there. So it could be that um might it be a landlord and tenant type claim. So is it possible that it's a defective premises act situation? I say landlord and tenant, but of course the duties under the defective premises act upon landlords in relation to premises. Um No don't only or not only I should say owed to a tenant but also owed to anybody on the property. Um For whatever reason they're there. So it could be that it's under the defective premises Act. And then we start asking questions about whether there's a relevant defect in the premises subject to Section four of that act or of course it's possible that the accident happened in a workplace environment. So it could be a claim for a worker. Um You know, the obvious example is cases like Kennedy and cordial, which went to the Supreme Court a few years ago now, two or three years ago now um where the claimants accident actually occurred on the public highway, but her job as a care worker meant that she had to traverse that the public highway in snowy icy conditions in order to go to see those that were dependent upon her that she was caring for. And that claim was successful against her employer even though her accident occurred on the public highway when she slipped on snow and ice. Uh And that was all about the protective equipment. Nonslip footwear that her employers had or actually in reality had not provided her with. So I think the first thing is to define what we've got on our hands. Is this really highways Act claim? Is it an accident that happened on a highway maintainable at public expense? That's the first question to decide who is likely to be our defendant? Um, You know, certainly the location and the nature of the claim is going to be dependent in trying to work out whether or not we're going to bring a claim against the Highway Authority. And as we just saw Lord dip locks, Words in the case, I mentioned briefly the Gullickson case back in 2003, um, establishes the fact that, you know, possibly highway might be created via the Common law. Maybe it doesn't have to be a highway that has actually been formally adopted. And that's quite a complex question with a complex answer that I want to deal with in just a short while. So, but I just want to throw that that possibility out there, that there might be a way in which a highway could be created via the Common law. And you know, at this Point, probably a good moment to remind remind ourselves that section 36, 1 of the Highways Act states that unless some event has occurred, which changes the situation, Highways maintainable at the public expense under former Highways Act and the previous one was the 1959 Act. Continue to be highways and indeed check out the act because it's section 36 up to it then goes on to specify five types of highway which for the purposes of the act, our highways maintainable at the public expense. So, well, we need to keep in mind the possibility or not the possibility the reality that once the highway always the highway and we'll see some see some of that in action in a short while. Um, certainly, um, in terms of location, we have to be clear that the duty and remember this is a statutory duty that we're talking about here is a statutory duty to maintain the highway. And is it one that is maintainable at the public expense? That's really important because if it's not, Then section 41 of the Highways Act, um, is going to be irrelevant and we're gonna be looking potentially for another defendant. So we need to be clear that we've got a highway maintainable at the public expense. We talked about section 36 1. The idea once the highway always a highway. So say I did mention the 1959, the previous Highways Act, but that's relevant for earlier versions of the app too. So not just 1959 Act. Earlier versions of the act. What I want to do is talk a little bit about the situation in relation to older cases defining highways because I think we need to be clear what we're talking about when we try and decide when it's a highway maintainable at the public expense. And we could probably go back to cases like MacGowan and the Northern Ireland Housing Executive case, a case when we still had a House of Lords that went to the House of Lords. Um the ideal that the sort of distilled wisdom of that case is that a landowner didn't know a duty to the public to maintain a public right of way over his land. Um Now, the important thing about that is is that very often, and there are lots of places in this country where this is the case, you've got privately owned property, but where public rights of way pass over that land. And the difficulty then is who's the defendant? Do you bring your claim against the landowner or do you bring your claim against the Highway Authority? Um The dilemma that that brings is the second point in your slide actually, because we also know that highway authorities um don't occupy a footpath on land owned by another. So we could never have the Highway Authority, if you like, as occupier of that land. The only way the Highway Authority might be the right defendant is if it has a statutory Duty to maintain that land under section 41. So you can see from that Mcgowan decision that, you know, it may be the case that you have a situation where the claimant has tripped or fallen over and it's really, really difficult to decide who the right defendant might be. I think certainly for the private landowners, if you like a MacGowan defense as it's become known, is probably appropriate. So following that case, even if you own land, uh, if there's a public right of way over it, you don't have any duty to maintain that public right of way. So it may well be that the Highway Authority is then going to be the right defendant. Let's try and answer that question. Um We mentioned the Galaxy in case back in 2002, um actually went in 2003, early 2003, but the cases got styled up in 2002. Court of Appeal, we talked about this being a footpath on a council estate, uh Highway maintainable at public expense, the court found, and was therefore governed by the provisions of the Highways Act 1980. Although that footpath had been constructed under the Housing Act 1957, the court took the view that it had nonetheless by inference been dedicated as a highway and so was maintainable at the public expense. Under the Highways Act 1959, the highways Act, subsequent Highways Act 1980. So we know then that in the Gullickson case and you know, in a sense that's kind of the highway authorities at least favorite decision because it suggests that the Highway Authority might be responsible for land that it had constructed Under acts like the Housing Act 1957, even though under the highways at 1980 had never been formally adopted to look at the counter view. And it's just a couple of cases I want to mention and then I want to bring us way up to date so that we can look at where we're at now because you know, this is a complex situation in terms of deciding where the highways can come about as a result of the common law, if you like. Um in cases like lee and devon um subsequent to Gullickson, we have the court deciding that a local highway authority was not liable for the injuries sustained in a traffic accident that took place on a footpath. The footpath was through a park. The path was not a Highway maintainable at the public expense under the 1980s Act. So we can see that that decision and we'll see another one in a moment. More recent decisions suggests that actually it's the formal adoption or a piece of land that matters for the purpose of the definition if lands never been formally adopted. Um The answer from the highway authorities, they have no statutory duty to maintain it. We already know the Highway authority can never be the occupier for the purposes of the occupiers liability act. We know the private owner of that land over which that public right of way passes, doesn't have the necessary control over the land to be the occupier. And indeed they have a MacGowan defense that we talked about earlier and you know, the idea is that the poor old trip victim just can't find a defendant. Um There are areas of land which exists no picture shop fronts, parks, private roads, pathways in many parts of the country. And so you know what we begin to see is that in cases like lee and Devon and in a case we'll look at the moment called young, the you know, the courts are looking at the decision in Gullickson and particularly lian devon um in the first tier appeal, the court held that the judge was wrong to hold the path in that case was a highway maintainable at the public expense, that the judge made a mistake, an error of law in interpreting Gullickson and that the judge had taken extracts from Gullickson um and applied them to the instant case. And he had interpreted said the court Gulliksen as meaning that since no local authority could provide housing save under statutory duty, the path in question was dedicated from the start as a highway maintainable at the public expense and they went on to Say it's clear from section 38 of the Highways Act, it's just not enough simply that the local highway of local authority had built the road or the path under its statutory authority. it also had to be a highway in order to be maintainable at the public expense. And certainly the judge at first instance in lee said the appeal court had made a mistake in treating the decision in Gullickson is providing a definition of the word highway. We see a similar Situation in the Case of Young, a Method, Abbeville County Borough Council in 2009. Again, a local authority was not liable in negligence or under the Occupiers liability act for a fall. Um That happened on a bridge through a Parkland um that form part of a highway which had not been adopted so that no repair obligation arose. Um It was clearly in a state of really poor repair. However, the court took the view that It wasn't a highway adopted pursuant to section 38 of the highways at 1980. So we're left with a position with those cases where claimants are in a real difficulty here in trying to decide who the right defendant might be. I think this kind of comes full circle really in a case called Floyd and Red Car and it comes full circle, I think because although a footpath in the case of unemployed referred to in an agreement under the Highways Act Section 38, The Highways Act had not been made into a distinct footpath. It had however, been adopted by the local authority. um it's rather strange situation because according to section 38 of the act and according to the map held by the Highway Authority um there was indeed a distinct footpath at the point where Mr Floyd fell over near some flats where he lived, but that had never actually happened, it never been constructed and there was just a bit of a rough old uh mud and grass in the area if it wasn't a footpath. However, the Highway Authority had adopted a footpath and it was clearly shown on the map and indeed in that case um It was interesting when judges put their wellingtons on and go out and have a look, the judge actually went out of Judges in the court of appeal went out to have a look at the locus. Um What was interesting is the Court of appeal took the view that despite the fact that the path had never actually been constructed, it had actually been formally adopted by the local authority and the judge at first instance had been wrong to dismiss the claim for damages for personal injury against the Highway authority. Um Clearly Section 41 Applied and the Highway Authority were in breach of their duty to maintain that section of path. I think what that where that leaves us is with the clear idea that what matters is adoption and what matters is whether The foot way in question or the roadway in question has been adopted under section 30 eight if it has the highway Authority is the correct defendant, even if and in the case of Floyd, this was the case. There isn't actually a former formal highway in the location when you actually go out and have a look at it, that's not important. What matters is what's been adopted. I think one of the issues that arises is, you know, where does the highway begin and end? Because we need to think about strips of grass bordering the metal part of a main road, you know, usually referred to as roadside wastes. They're going to be part of the highway. Um And certainly if we look at Section 263 of the Highways Act, the 8th 1980 Act. Um that section makes it clear, subject to the provisions of this section, every highway maintainable at public expense, together with the materials and scrapings of it vesting the Highway Authority, who are, for the time being the highway authority for the highway. So it's quite clear that the ages of that carriageway are also highways maintainable at the public expense. And Section 1 30 of the Highways Act goes on to say it's the duty of the Highway Authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the Highway Authority, including any roadside waste, which forms part of it. Clearly, then highways are likely to extend, if you like, beyond the edge of the roadway and beyond the edge of the path. Um And I think we need to be conscious of that. We're taking a look at the duty and what it might include The Section 41 duty. We need to be clear about because you know, it is a statutory duty. So it's very difficult to argue that highway authorities any duties other than this one. Um Certainly excuse me, we'll look in a short while at the duty that the highway authority might o in respect of the build up of ice and snow on the highway. And again, that's a statutory duty. Section 40 11. A But the reality is that in any claim we're bringing against the Highway Authority, this is the only duty that we are concerned with. And there it is on your slide, the authority who are, for the time being the highway authority for a highway maintainable at the public expense are under a duty to maintain the highway. That's it. Those are the words we have to conjure with maintain the highway and for breach of section 41 to occur. There must have been some failure to maintain or failure to repair that leads to the question, what constitutes a lack of repair? And you know, in most cases, considering the point, Uh the issue of the statutory defense which the highway authority have under section 58 is considered at the same time. Let's take a look at, you know, the latest version if you like of the question, when is a highway? Not a highway? And I think we can do no better. Um Then look at the case of Barlow and Wigan Council, which went to the Court of appeal in 2020 so last year and it concerns a claimant who suffered injury having tripped on a public path in a local authority owned park. And the question was, was there a cause of action for breach of statutory duty Under section 41 of the Highways Act? Just to remind ourselves the respondent who was the claimant in this case? In the original claim had tripped over a tree root and injured herself on a part in on a path. That Path ran through a park and the park had been constructed in the 1930s by the district councils predecessor. Uh The District Council, the local authorities predecessor, the respondent sought compensation and the local authorities position was that the path was an unrestricted public right of way and it didn't have any duty to maintain it. Now, the first incarnation, because this goes all the way to the court appeal, the county court found the path was in a dangerous and defective condition, but concluded that it was not a highway maintainable at the public expense for the purposes of Section 36 Sub to Survey. And it held, although the path had become a highway Through 20 years usage and remember that's contained in section 30 one sub one of the highways Act, it had to have been constructed As a highway for section 36 sub to sub to apply. And there was no evidence regarding the District Council's intention to dedicate the path as a highway at that time, the High court upheld the respondents appeal on liability And it held that section 36 did not require express dedication when the path was constructed Under sections 47 and 49 of The 1949 Act, and that had the effect that public paths um if you like in existence before the commencement of the act were repairable by the inhabitants at large. Um The Highways Act, the 1959 Act replace that duty with a concept of a highway maintainable at the public expense. And indeed, that's where we're at now. Section 36 of the 1980 Act provides all Highways um immediately before the commencement of this act were highways maintainable, public expense for the purpose of the highways at 1950 nine continue to be. So now the local authority argued, um relying on Gullikson, which case case, we've just been talking about that that section only applied if the relevant body actually constructed the highway in its capacity as a highway Authority and only to highways constructed as such at their inception, The respondent contended that section 36 did not require the highway authority had to have any such intention and that alternatively the path was probably dedicated before 1940 nine. Such that it was maintainable at the public expense. Section 47 and section 38 of that old. Remember the predecessor um to the 1959 Act. So let's take a look at the appeal and let's take a look at what the court of appeal made of this. two questions really come along. Firstly, was the path constructed By a highway authority within the terms of section 36 sub to sub and secondly, Section 36 sub one. What was the deemed date of dedication? So although the path had not been constructed as a highway by a highway authority for the purposes of section 36, was it presumed a common law to have been dedicated as a highway since it was constructed back in the 1930s, and therefore it was maintainable at the public expense. So first question was it constructed by A Highway Authority within the terms of Section 36, The court took the view that it was critical whether the path was a was not deemed to have become a highway before sections 47- 49 of the 1949 Act came into force. And clearly, the Highways Act of 1959 created two kinds of highway maintainable at the public expense. Firstly, those which were in 1959 maintainable by the inhabitants at large under the old act, and that depending on whether the Highway highway was dedicated, if you like, or deemed to have been dedicated before that highways Act. The second category was those which in 1959 were maintainable by the Highway Authority. And the fact that the Highway Authority, in the instant case, the District Council had constructed a path Before 1949 would not help the respondent, the claimant because under the act that did not make the highway maintainable unless it had been dedicated, it was deemed to have been dedicated before that act. Um the respondent, the court decided could not, that's the claimant could not succeed under Section 36 up to because when the District Council constructed the path, it was not acting in its capacity as the Highway Authority for the area. There was no evidence in the instant case of an express dedication. Say under the current Highways Act, the 1980 Act, section 31, a right of way over land enjoyed by the public for 20 years was deemed to have been dedicated the highway in the absence of sufficient evidence to the contrary. However, under Section 30 one sub two, the 20 year period was calculated retrospectively from the date when the public's right to use the way was brought into question. So, in the instant case, there was no evidence that the public's right to use the path had ever been questioned, but the deemed dedication would be Long after 1940 nine. It was unnecessary really to decide whether that applied as the respondent succeeded. On the basis of inferred dedication at common law dedication was deemed to have occurred at the beginning of that period of continued user In the instant case. That meant the path was deemed to have been dedicated since the early 1930s. Um you know, the evidence established that It was opened the park in the 30s, the path was made soon after and the public have been able to use it without restriction without interruption. That was ample evidence to support the implication of presumption of dedication of Common law. There was no evidence of an alternative explanation. Um what's important, I think about that is that it was therefore deemed to have been Repairable by the inhabitants at large until commencement of the 1949 Act and they're after the 1959 Highways Act, maintainable at the public expense since that date. Accordingly, the respondent, the claimants cause of action For Breach of Statutory Duty Under Section 41 of the 1980 Act was established. Think that case makes a really important point that for claimants, what we now know is that dedication of highway can happen As a result of continued use. Um we used to use the term prescription more than 20 years. What the case also reveals is that huge amount of research was carried out and I'm guessing that in terms of some of the documentation that was unearthed. You know, we will be looking at things like microfiche in library files to try and find out whether or not that, you know, when that land was built, when it was dedicated and If by continued user, we've got a situation where the highway authority have a continuing duty under section 41 to maintain it and you know that that case now joins. I think the branch of cases, you know, Mcgowan, um Gullickson that that are really important to try and decide who might be responsible for a piece of land. So I think if you find yourself in a situation like that and you've got a case like that one, those are the go to cases to try and work out whether or not the Highway Authority has got a duty to maintain that land and you may well be looking at, you know, decades back to try and decide whether or not the highway came about through the Common law if you like, which was pretty much the argument in Gullickson um that you know, dedication is a highway can come about through use and through the common law. I think in terms of the repair duty, there are always difficulties in trying to work out what the limits of the repair duty might be. And certainly we see in cases like Rawlinson Back in 2000 and five, 2015, I'm sorry in the high court. Um This question of whether or Not a repair duty under Section 41. Remember that that's if you like all, we've got to bring our claims whether that repair duty applies where the Highway Authority have failed to remove moss and um you know, the Queen's Bench division allowed the appeal to the local authorities appeal in the Rawlinson case um against the decision that it was liable to the respondent for Breach of its duty under Section 41 of the act for failing to remove moss on which the respondent had slipped from the surface of the highway. Um The view was that it couldn't be said that the scape of the highways authorities absolute duty because remember it is an absolute duty um under the act extended to the removal of moss and sort of, among other things. Um The authorities submitted, the judge made a mistake in finding that it's statutory duty under Section 41 of the act to keep the fabric of the highway and repair extended to removing moss and algae from the highway. And consideration was given to, you know, firstly, and, you know, we really get into some detail here of, you know, the way in which moss works, Whether if it puts down roots, moss becomes part of the surface of the highway, whether there was any connection between moss and the concrete bonded to the highway, whether the moss was permanent, Whether the fact that the authority had to take steps to remove moss was relevant to the question of statutory construction and whether the judge had made a mistake in holding that the scope of the highway authorities absolute Duty under section 41 extended to the removal of moss. You know, and I think this this case sums up really the dilemma of always the dilemma. Of course, I think, and that is that it's really difficult for the court to decide where that repair duty begins and ends. And certainly as we see in Rawlinson on the appeal to the High court, the local authority took the view that the duty did not extend to Moss. Remember maintaining the highway implies maintenance of the highway itself, not extraneous matters on top of the highway. And the court's view on this appeal was that Moss was in fact something sitting on top of the highway. You could argue akin to ice and snow, actually, because we discovered, and we'll talk about this in a short while um that the presence of ice and snow on the highway is not Covered under this section 41 duty of maintenance. And indeed, we needed a whole fresh section. Section 41 1 a in relation to ice and snow to deal with that. So matters sitting on top of the highway. Um No, um the highway authorities duty does not extend maintenance duty does not extend to things like moss and algae. And it's worth pointing out actually um that the court in that case um was pretty clear that, you know, don't don't bother claimants with other forms of vegetation, because quite clearly, um the decision is such a absolute one um that those claims are likely to face potentially applications for strikeout for summary judgment. Um The decision is, is pretty all encompassing to see that that principle and how that really works. Um I think the case of thomas and work ship uh from 2011 um subsequent to that makes clear where we're at in terms of substances on the highway. Um It's a strange case, this one um Highway Authority at 1st instance was found in breach of its Section 41 duty when a cyclist sustained person injuries after hitting a small spillage of concrete, which was stuck to the highway causing a danger to traffic. The claimants damages were reduced by 60% which is quite significant actually for contributory negligence, on the basis he had not been cycling for at a safe distance from the cyclist in front. This was a cycling club that we're using the highway. Um He claimed damages as a result of a defect in the highway, and he argued that it was due To a failure by the Highway Authority to maintain the highway pursuant to section 41. Um He fell from his cycle one out in a club and maintained he'd struck a spillage of concrete on the highway, which was between 20 and 30 high and was stuck to the highway. I think that's the main point here. It adhered to the surface of the highway. So if we go back to Rawlinson and we start thinking about in a moss and algae, this is different because this is a spillage of concrete uh in presumably a previous repair that actually was a deering to the highway. Um There were about 20 of the cyclists and they're all in ranks of two, they were doing 20 to 25 miles an hour. And He had indicated that in fact, he was only traveling between five or six inches from the cycle in front, which is pretty close, I think. Um What was interesting was that the evidence from the local authority Highways Inspector was that they carried out a routine inspection of the road uh some months before the accident, but had recorded no defect and, you know, the highway inspectors evidence was the only thing that prevented the concrete lump being removed prior to the accident was its position within the lane, it wasn't within the ordinary wheel tracks, a meter to the left or right would have been within the wheel tracks. Um The claimant submitted that Section 41 applied because the concrete village had hardened on the road and formed part of the road surface or fabric such that the road had fallen into disrepair. The concrete village made the highway dangerous because it was foreseeable was the argument that a group of cyclists would use the highway and that the, it's clearly a cyclist when hitting that kind of lump of concrete will be unable to control their cycle. Um And you know, the argument obviously from the Highway Authority was that the accident was made much worse by the dangerousness of the way in which the claimant was cycling. Um It's interesting, I think that the argument that it adhering to the surface brought it within section 41 what seems odd about this case is the thought that, you know, had the lump of concrete just been laying on the highway, it would have presented a similar Challenge to a cyclist and yet wouldn't have been captured by the Section 41 duty as it wouldn't have formed part of the highway, think then what we can see is that for there to be a breach of section 41 there must have been some failure to maintain or some failure to repair. And I think what constitutes a lack of repair um is clearly the key question. And in most cases, considering the point, of course, the issue of the highway authorities statutory defense under section 58 tends to be considered at the same time. Um let's try and analyze what we need to establish in order to be successful in showing that the highway authorities Breached its section 41 duty. And I think what we need to be clear about is that in cases like Kent county council and Lawrence um in tripping cases, the opinions of lay witnesses, the opinions of the highway inspector actually, as to the dangerousness of a defect need to be taken into account. So what we see is The claimant in this case bringing a claim against Kent County Council under Section 41 of the Highways Act. After tripping over a manhole cover protruding by at least 15 millimeters. Um the claimant suffered injuries and the inspector from Kent County Council had inspected the manhole cover some 10 months before the accident measured the protrusion with his mobile phone, which he um confirmed was 17 to 18 mm wide and stated that the protrusion was less than the width of his phone. Um At first instance, the court decided that section 41 of the highways that had been breached by King County Council and Award of Damages was made, but it was on the appeal where the court took the view that the trial judge had made errors in taking into account irrelevant factors when coming to his conclusions, namely, the views of the witnesses as to the dangerousness of the protrusion. And the question of whether something was dangerous. The court said was something that the judge was to decide for him or herself and not something that evidence should be um taken from witnesses or even from the Highway Inspector. Um and then put into the judgment. The judge's reliance if you like on that evidence and on the highway inspectors. Contemporaneous work instruction to make the cover safe. Um, The idea after the accident was that it should be repaired immediately as it was dangerous um, was not an admission that the prosecution was dangerous and it wasn't legitimate. The court took the view that actually the inspector's opinion about dangerousness, The witness's opinion about dangerous Nous Nous was not the point. The judge was The 1 to decide and on all the evidence. The manhole cover was unremarkable and balancing private and public interests. It was held that the prosecution didn't present a real source of danger And the risk of injury was of a low order. Um, the four must have been caused by some momentary inattention. I think that's a really interesting case in terms of establishing, you know, how difficult it can be um, to decide whether something is dangerous or not, and in fact how that's the judge's decision and not a decision. Um, that's rightly Left two witnesses lay witnesses or indeed even the highway inspector who had carried out the inspection before and after the accident. So, I think it sets out the difficulty that claimants have. Um, the case of the silver and transport for London, um, in this particular case sets out some important issues. I think it sets out the possibility of sort of common law duties to highway users on the part of the highway Authority. Um, Clearly, this accident happened when the claimant tripped over the surface of a manhole cover on a busy London street, it become worn and polished and represented a real danger to riders of motor scooters and the claimant sought damages as as a result of falling off his motorcycle, a little vespa scooter at a junction in London. Um the claimant was traveling, he says that about 10 mph on the right hand bend breaking as he approached the junction, the traffic lights and that's where the accident occurred. He argued that his motorcycle had slipped as he rode over the metal manhole cover are in the carriageway and that it become worn and it was polished and it was a real danger to road users and he argued that it was particularly dangerous to those on motorbikes or scooters and that the defendant Had accordingly breached its duty under section 41 in support of his claim. The claimant relied upon extracts from three documents of the defendant giving guidance on the safety of manhole covers, Photos of the cover taken two months after the accident And the defendants 2017 Notice under the New Roads and Street Works Act Section 81 to the statutory undertaker that it had identified a polished cover um in the location and its replacement was to be ordered for the following day. So the evidence was pretty compelling. Let's see what the result was. Um The argument really was that the document extracts gave a reliable guide to the standard of safety applicable in the first advice note, we got notice of worn polished covers as an example of apparatus requiring remedial action, so the duty, if you like, only arises when the condition of part of the highway was such as to create a real source of danger and the key question in deciding that was the probability that injury would be caused by that condition. Secondly, the condition of the cover in the photos was likely to be very similar to its condition at the time of the accident. Um The second inspection contract, if you like, included a clash of classification of ironwork defects as worn or polish covers likely to create a hazard. And the third urban motorcycle design handbook identified the loss of control hazard, particularly in the wet caused by the lack of sufficient skid resistance on service covers, especially those within a braking or turning area of a motorcycle. Um, Clearly from the photographs, the condition of the cover in the photographs um suggested that the right hand corner of the cover about 15 percent of the area was polished and smooth, with no grip whatsoever, the rest of the cover had raised studs and probable that they were worn to the same extent. So, given that location of the manhole cover on the bend of a busy road approaching the traffic lights and the safety considerations identified in the documents. Clearly the argument was it's appearance fell below. Um the night, the Section 41 standard, if you like. Um the replacement of the cover, I think the replacement of the cover the day after the accident. Um Certainly after the service of the section 81 notice, um the court decided didn't infer that it was treated as urgent work. This is often the situation isn't it? That what will happen is that you will have um an urgent repair carried out after the accident. Often the claimant will argue that that urgent repair is evidence um that the the condition was dangerous at the time of the accident and Um also established that the claimant had established their breach of Section 41. Um The court took the view that the use of capital letters for emphasis in the repair instruction did go beyond a simple requirement to replace the cover because somebody had claimed to have been injured because of it. Um It recorded an assessment that the cover was polished. So I think we need to look very carefully at documents in relation to repairs that carried out afterwards whilst, you know, we know it's trite law to say that they don't establish the duty the defendant had before the accident happened. But we do know that they can be useful in showing that, you know, the urgency of the repair might help the claim and established dangerousness in the first instance. Um It's really very hard for claimants to succeed in tripping or slipping accidents of any kind without the benefit of photographs of the defect. And ideally, a claimant's going to obtain at least half a dozen probably photographs closer to the accident date they're taken the better and the dates upon which the photographs are taken. The identity, of course, of the photographer should be recorded ideally on the photographs themselves and they must include, I think a photograph taken from the claimants direction of travel at the time of the fall, but also helpful. I think they're taken from a, if you like, a variety of angles. So close up photographs of the defects itself, photographs indicating the dimensions of the defect. You know, we need to be able to see some method of identifying how deep the defect is, you can do that with a ruler, can't you? Some other object? Just to provide scale a pound coin, a bank card, um just to show if the rulers placed vertically, resting at the bottom of the defect and another ruler placed horizontally within the photograph, and that will indicate the ground level adjacent to the defect. So the sort of intersection, if you like, of the vertical and horizontal rulers will indicate precisely the depth of that defect. If you don't have that marking, the claimant leaves himself open to argument about the depth of the defect at the trial, you know? And certainly if we're going to try and establish dangerousness, that can be vital. Um Clearly, you know, the photograph showing a reenactment of the claimant losing their footing at the point of the defect and will, that will greatly help the judge in picturing how the claimant came to lose their footing. And it also helps, I think, to enable the judge to picture the context of the claimants route towards the defect. So reflecting the direction travel, really, really important photographs of the footwear worn by the claimant at the time of the accident. Again, arguments abound that particular type of footwear the claimant was wearing might, of course the problem rather than the defect. So some sort of record of that footwear is important. And I think we can't deny the fact that photographs showing the wider area around the defect are key because it helps to establish what kind of area the accident happened in, you know, is it busy? Has it got a high volume of pedestrian traffic? Are there lots of vulnerable pedestrians? Is it near a school, Is it near a nursing home, other lots of shops? So really important to establish the sort of nature of the area where the accident occurred? I think, you know, some problems that defendants will come across in putting together um their defense or Their argument that say the Section 41 duty isn't breached is certainly things like no highway inspectors giving evidence at trial. Um, clearly inspection and record of defects if the defendant relies on the fact that inspections of the highways in the months before and after the accident haven't recorded a defect. Um, and that there was no defect. It's going to be um, you know, difficult if you like for the claimant to argue that the defect was in place. If no inspector gives evidence, it's difficult for the court to make a decision about whether or not the defect represents a real source of danger and in the D silver case, that was a real problem. I think for the defendant's um, other difficulties for defendants are, there was no evidence as to what records of accidents were kept by the defendant nor the number of unreported accidents. And then in the silver, that was a real problem for the defendants. You know, one of the issues was, it was only going to be if you remember the silver case with the vesper small motorcycles with small wheels which were likely to be adversely affected by the slippery surface. Um, and probably those riders mostly would have avoided the cover. So the lack of accidents wouldn't be a particularly helpful indicator for the defendant's. Um, clearly in order to get helpful evidence for the claimant. One way of considering getting their evidence is to think about Part 18 requests and those parties 18 requests might ask the defendant to particular rise perhaps its root, it's highway inspector took on the last inspection prior to the accident. You know, in a tripping case, it might indicate the highway inspector approach the defect from the opposite direction as the claimant. Um, and that would have made the highway inspector less likely to notice any raged edge in the pavement on which the claimant tripped? A claimant should note really, that defendants do not have a causation defense available under section 50 eight, their statutory defense, so it's no defense for a higher authority to accept its inspection and maintenance regime didn't satisfy the requirements of Section 58 but to argue the accident wouldn't have been avoided even if the regime had been satisfactory. And we get that from a number of cases, probably the best authority for that is Griffiths and the Liverpool Corporation case from 1967. Um, it's pretty established law. So claimants should remind the judge that the burden of proving any reasonableness of an inspection and maintenance regime rests on the highway Authority, which of course it does. Um, Defendants are almost always going to be advised to seek further particulars of how the accident occurred. Via apart 18 request. Um, you know, claimants might well provide, fail to provide adequate information in their particulars as to the mechanism of the accident and sometimes vagueness in the pleaded case allows claimants room at trial to sort of maneuver and alter and what's being said. The sort of questions that might be asked by a defendant from where were you heading to where were you going describe in detail, how you came to lose your footing? Did you slip trip or lose your footing in another way? Was it your left or your right foot hit the defect in what direction did you fall? Please indicate on the photographs, the exact point on the alleged defect on which you lost your footing. And so if contradictory evidence subsequently arises, maybe in the medical records of the claimant, that claimant is going to find that really difficult to deal with. Um You know, in a sense, from the defendant's point of view, it pins the claimant down to a single case quite early on um identification of hazards in terms of the highway authority. Um you know, codes of good practice clearly exist and the local um the highway authorities, intervention levels may vary. Um So, you know, each highway authority will have its own intervention level. Typical ones are 20 mil, 25 mil or 40 mil. Um So if there's a guidance from the Highway authority drawn from what's called the Kindred associates report, it will probably be 20 millimeters. And the application of that intervention level may depend on what is being measured. So is it a sheer trip that's going to warrant a smaller intervention level. Um the purposes of intervention may also vary. So if an intervention at X millimeters is considered to be necessary for public safety, uh then a repair should be carried out within 24 hours or intervention might be considered to be necessary as part of routine maintenance. So longer repair period may be allowed? Um you know, what, what clear is that either a higher authority will have specific intervention levels in relation to different types of highway or perhaps a blanket level. The other thing to think about is that claimants also need to think about the categorization of the area. So, you know, is it a main shopping area or the particular locality, locality? Is it outside of school? Um What's the location and what might that determine the intervention level? Overall factors to assess danger are going to be things like measurements, we mustn't get too carried away in relation to measurements. Very often. I think we can use a mechanistic system and argue that there's a kind of requirement of at least an inch unevenness or the claim won't be successful. And I think we can, And they say that that really isn't, isn't the case. And I think that's clear because there are many cases that succeeded with unevenness of less than an inch, and certainly many cases have failed where the unevenness is greater than an inch. So it's really about, as the court said in Mills and Barnsley back in 1992, um you know, minor defects in the highway don't constitute a dangerous condition, such that the Highway Authority was in breach of its duty to maintain The test of dangerousness is one of the reasonable foresight of harm to users of the highway. Each case turns on its own facts, so we have to also ask questions. Is it a sheer trip, Is it rocking trip? Are they combined hazards, tree roots, etcetera? Specifically location? Where is it? General location? How busy is it? And you know the overall impression from the photographs that have been obtained um Clearly um in West Sussex and Russell judge was entitled to find in that case that a highway authority had breached its duty of care under The Highways Act Section 41. By failing to remedy a difference in height between six and 12" between a verge and a carriageway, the claimant lost control of her vehicle wheel went down into that dip and it caused her to lose control of the vehicle. Highway authorities are expected to anticipate that some drivers may leave the carriageway. She'd actually skidded on ice and snow in doing so, but she was entitled to find that there wasn't that sort of significant drop And difference between the verge and the carriageway. Section 41 was breached. We mustn't forget the statutory Defense. Section 58. The authority had taken such care as in all the circumstances was reasonably required. Section 58 Sub two sets out all the particular factors that are relevant that includes character of the highway traffic, expected to use it. The standard of maintenance, appropriate for a highway of that character. State of repair, in which a reasonable person would be expected to find it, whether the highway authority knew or could reasonably be expected to know the condition of the part of that highway was likely to cause danger where the highway authority couldn't have been expected to repair what warning notices have been displayed. And you know, I think it's important to note that the onus is always on the Highway Authority to prove that defense on the balance of probabilities, let's just remind ourselves that the duty To clear ice and snow comes about as a result of Section 41 1 A of the Highways Act 1980. So ice and snow on the highway, that's the relevant section that you need to be thinking about and pleading a breach of there. It is so far as is reasonably practicable, ensure safe passage along the highway is not endangered by ice and snow. Um and that's the amendment that went in in 2003, reasonable practicality. You'll be aware flags up the question of money and the issue of whether the Highway Authority has the funds in order to have an effective system. Certainly in terms of preparing a meeting, claims, claimants need to consider that they only need to prove the fact of their accident and that it was caused by ice to establish a prima facie case and any evidence of shortcoming will strengthen their hand greatly in terms of the defendant's systems of ice clearance, evidence for the defendant, the weather conditions and the warning of them. The winter safety policy including hierarchies of gritting salting the steps actually taken may extend to budgetary considerations so they are able to bring into account budgetary considerations, defendants going to need to establish the nature of the road or pavement usage to be made of it. Gritting salting clearance standards for warning, what weather reports were there and the duration of the cold weather and of course warning notices are going to be relevant. The winter safety plan is the appropriate policy document from claimants. You want to be seeing that winter safety plan. Any generic documents of guidance evidence of the gritting insulting program intended to be implemented and I would add the one that actually was implemented um where the reports and of course the records of the actual gritting and salting that was undertaken. Um I think we should just add that. It's important to note that under the protocol um the process, the R. T. A. Pre action protocol, section 44 paragraph 44 makes it clear that the protocol doesn't apply to a claim in respect of a breach of duty owed to a road user by a person who is not a road user clearly claims against a highway authority for defects in the highway are not covered by the R. T. A. Protocol. Those claims will find themselves running outside that process because the claim wouldn't come within the definition contained in the protocol. So that's worth remembering. Um Even if the financial limits apply, the actual type of accident does not apply in these circumstances. Thank you. That finishes our weapon after day. Thank you so much for listening, and I hope it was helpful. Thank you very much.
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