Highways: expecting the unexpected

In the second in a series of articles, Jack Harding focuses on lesser-known case law which may assist in defending claims brought against highways authorities for failing to maintain the highway under section 41 of the Highways Act 1980 and its predecessors.

In the early ‘Liverpool’ cases, the Courts made it clear that uneven pavements are an unfortunate vicissitude of life, and nothing short of a real source of danger would suffice to establish liability. Perhaps the best-known statement of principle was found in the judgment of Cumming Bruce J in Littler v Liverpool Corporation (1968) 2 All ER 343:

“A length of pavement is only dangerous if, in the ordinary course of human affairs, danger may reasonably be anticipated from its continued use by the public who usually pass over it. It is a mistake to isolate and emphasise a particular difference in levels between flagstones unless that difference is such that a reasonable person who noticed and considered it would regard it as presenting a real source of danger. Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.”

Is a different approach warranted where the claimant’s accident has been caused by a particular feature associated with, for example, metalwork in the pavement, as opposed to generally uneven paving itself? This was the question which arose on the facts of Somerset County Council v Harding (1995) Lexis Citation 3129.

The claimant was walking in Frome town centre when he tripped on the concrete edge of a Victorian drainage culvert protruding above the pavement. The culvert, of which there were (and presumably still are) many in Frome, ran at right angles across the line of the pavement to carry water from the eaves of a house into the gutter. The extent of the protrusion was less than ¾ of an inch.

The trial judge found in favour of the Claimant. On the question of section 41, he sought to distinguish the Liverpool cases:

“The fact that makes this case different from the others which have been quoted to me in argument by both plaintiff and defendant is that running across this pavement there was this cast iron square section Victorian drainage conduit with a circular cast iron pipe running within that conduit….. Had it been solely a tarmacadam pavement with no conduits running across it and some depressions of this depth had arisen from either vehicles driving over it or general settlement, I think the plaintiff would have had difficulty making out his claim unless there had been a most substantial gap or trip in the pavement. But it is was not such a straight forward set of tarmacadam; it had this Victorian cast iron drain running through it which had been covered over during the years when the County Council were maintaining this pavement with tarmacadam or something similar. By virtue of its construction of course it could not shrink or settle, but it is quite clear from the photographs that the surrounding bitumen and gravel mix had done just that. “

The Claimant submitted, in response to the Council’s appeal, that this distinction was a valid one, arguing that whereas ‘occasional ridges may be expected in a flagstone pavement or unevenness in a tarmacadam surface…here was a single hazard and… in an otherwise unlevel surface”

The Court of appeal (Auld LJ giving a judgment with which Sir Stephen Brown agreed) concluded that this distinction did not withstand scrutiny:

“…the Recorder, in the passages from his judgment that I have cited, does not indicate any material basis for distinction of the circumstances here from those in the Liverpool case. He points to the difference in the nature and cause of the unevenness but does so as if those matters alone were enough, yet he acknowledged that unevenness of this degree, about three-quarters of an inch or less, caused for some different reason in an uninterrupted tarmacadam pavement would not have been enough to establish liability.

I confess that I do not understand that reasoning or its basis as a distinction between this case and the type of case illustrated by the Liverpool cases.

In one sense the unevenness here was less of a hazard than it might have been, as simply a difference in level in plain tarmacadam or between the two flagstones, because the line of the concrete cover was plain to see. Such a construction was also a common feature in Frome (not an unusual or unexpected hazard) on the uncontradicted evidence before the Recorder”

Whilst every case necessarily turns on its own facts, cases such as Littler (and the many that have followed in its footsteps over the year) have established the clear principle that minor defects of any kind will not endanger pedestrians as they pass and repass along the highway. Importantly, as the Court of Appeal explained in Mills v Barnsley (1992) 1 PIQR 291, this is a principle which is grounded in policy:

“Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life. 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. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest. The judge’s ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was unfortunately injured in this case. The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous. In my judgment the plaintiff’s claim fails on this first point.” (per Steyn LJ)

It follows that attempts (such as the one in Harding) to carve out exceptions based upon expected and otherwise unremarkable physical differences in highway are unlikely to be successful.

Jack Harding is a barrister at Deka Chambers.

See the first article in the series: Highways: the ‘rule of thumb’ - In the first in a series of articles Jack Harding delves into some of the lesser-known authorities relating to the Highway Authority’s duty to maintain the highway under the Highways Act 1980.