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On the verge of Lockdown. Don't cycle on a footpath.

The High Court handed down a remote judgement in the case of Karpasitis v Hertfordshire County Council last month.

On the 22nd April 2020, Mr Karpastis was riding a route well known to him on a footpath at the side of the A10 near Chestnut. The path and the A10 were separated by a grass verge. As Mr Karpastis was returning home, he came across a jogger who was travelling in the same direction. He moved over on to the grass verge to overtake him. As he was on the grass his front wheel went into a hole. He was thrown off his bike and fractured his vertebrae. As a result he was left with a significant injury which prevented him from continuing with his work as a social worker. A passing motorist described the hole as " very deep", and that "If I were to stand in it, it would be up to my knees". It was "at least a few feet wide... the hole itself was quite inconspicuous. You certainly would not be able to see this from the path or even when immediately in front of it on the grassy verge"

The court decided to deal with the issue of liability separately from quantum (value).

Mr. Karpasitis alleged the Council were liable as a result of:-

i) A breach of s41 Highways Act 1980, and

ii) A breach of a duty of care owed at common law.

Section 41(1) of the Highways Act, 1980 requires "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."

The duty to maintain requires the Authority to ensure the highway is free of danger to all users who use the highway in the way normally to be expected of them. The defect is required to create a danger. The road or, as in this case, the path should be safe for those entitled to use it. It does not require the Authority to repair small depressions and holes. The Highway does not have to be like a bowling green. The cost of repairing every minor defect would be too much.

Verges do however form part of the highway but a different standard will normally apply to them. In King Lifting Ltd v Oxfordshire CC [2016] EWHC 1767 (QB). The court held that the purpose of verges is to support the carriageway, not to provide a safety buffer for overrunning vehicles:

Section 58(1) of the Act provides a defence if the Highway Authority can prove it has "taken such care as in all the circumstances is reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic."

The Defendants called evidence confirming the grass had been cut on the verge a few weeks earlier. The grass cutters were instructed to report any dangerous holes. None had been reported and none had been seen. Had they been reported action would have been taken. They inspected the path every 6 months and accepted the inspection included the grass verge. It was last inspected a few months before on the 13th February 2020. The inspector said he would not have missed such an obvious hole. Had he seen it he would have made a request to "make safe with appropriate footplate". If the hole had been at a location with heavy footfall, he would have requested a 2 hour repair, and also called the depot to send someone out to complete the repair as soon as possible.

Both parties called experts. There was a suggestion the hole could have been caused when a tree had been removed or possibly by rodents. The Claimants expert was of the view the grasscutters could have easily missed the whole and suggested the highway inspector may have failed to their job properly.

The Defendants expert was of the view it was not unusual for the grass verge to be left unmaintained as the verge was rarely intended to be used as a route. In any event the hole had probably developed between the inspection in February and the accident in April, when the ground simply collapsed due to rodent activity.

The issue as to whether Mr Karpasitis should have been cycling on what the Defendants argued was essentially a footpath. The defendants withdrew their argument he was riding illegally. The court found the following:

• The Defendants knew the path was used by cyclists and it was foreseeable a cyclist and a pedestrian may use the grass verge for passage.
• The verge was dangerous but did not require urgent repair but needed to be repaired within a reasonable period of its discovery.
• If a "No cycling" sign had been erected the Claimant would not have attempted to cycle on the footway and the accident would not have occurred.

Accordingly, causation in respect of both the statutory and common law claims is made out. However the court went on to find:

• The hole was probably not present on 13 February 2020.
• The inspection was competent.
• The Defendant has a s58 defence and is not liable under s41 Highways Act 1980.

Under the Common Law the court found:

• The signage about whether the path was a shared cycle path/footway was confusing.
• There were no signs requiring cyclists to dismount north of the bridge.
• A footway remains a footway unless a sign authorises cycling.
• The reduction in the width of the path implies a change from a shared way to a footway.

Accordingly there was no liability in negligence. Had there been the claimant would have had his award reduced by 33% for contributory negligence.

The court concluded, a prudent cyclist would ensure that he rides in such a way that he can see and react to the road ahead.

10mph was excessive for the conditions, and the sharp right-hand turn was a manoeuvre which Mr. Karpasitis should have avoided because it made it difficult for him to see the route ahead.

Had this accident occurred on the road or a cycleway the Claimant may well have succeeded if there had been a failure to inspect the highway on a regular basis. As a general rule roads in town centres and A roads should be inspected every month. B roads every 6 months and other minor roads, residential streets, C roads, every 12 months. If a defect has been reported and not repaired within a reasonable time, liability can arise. The timing for carrying out a repair will depend on the size, depth and how dangerous the defect is deemed to be. The DMA (Damage Management Approach) provides

• Category 1 Defects' - 2 hours
• Category 2 Defects
• Category 2- High Priority - 2 hours
• Category 2- Medium Priority - 5 working days
• Category 2- Low Priority - 20 working days.

If you have suffered an injury as a result of a defect, you may be able to pursue a claim. Good photographs of the defect showing its depth will be vital in proving it was dangerous. Evidence to prove how long it has been there will help. If it has already been reported, evidence of when and to whom it was reported would be vital.

If you, a friend or family member have suffered an injury as a result of a trip or fall caused by a defect, you may be entitled claim compensation. Here at Forbes Solicitors, we offer no win no fee advice. Please call one of the team if you have suffered injuries.

For more information contact John Bennett in our Personal Injury department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Personal Injury department here

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