The Court of Appeal clarifies the test for dangerousness in respect of rarely used highways

Article

04 May, 2016

Melvyn Griffiths v Gwynedd County Council [2015] EWCA Civ 1440

The Court of Appeal has dismissed a cyclist's claim for personal injury finding that a defect on the edge of a remote road was not a danger.

The Claimant had been cycling along a high mountain road, under 4m wide, with gradients of between 14% and 20%. Whilst cycling downhill, he rounded a bend and hit some debris. He changed direction to avoid it and came into contact with the defect at the edge of the road. He was thrown over his handlebars and suffered cuts and wounds.

The local authority inspected the road twice a year. It had last been inspected in February 2009 when the defect was there. The local authority was guided by its code of practice, Well-Maintained Highways. Category 1 defects required prompt action because they were an immediate or imminent hazard but their categorisation as such depended on a range of factors and, was to be informed by local knowledge. Category 2, included all other defects, was composed of those defects which following a risk assessment were deemed not to represent an immediate or imminent hazard or risk.

The issue before the Court of Appeal was whether the highway was dangerous, with the cyclist arguing that the defect fell into category 1 of the local authority's code of practice.

The local authority's policy was that 60mm represented a guideline for an actionable category 1 but the officer who carried out the pre-accident inspection gave evidence to the court that he also took into account all of the circumstances of the particular defect. Lord Justice Christopher Clarke commented that the intervention policy set by the Council of when it will intervene and take action does not determine the dangerousness of a defect, it is merely a "rule of thumb".

The Court of Appeal dismissed the appeal finding that the nature of the road and the extent of its use are relevant factors when considering whether the defect is dangerous. The Judge commented that "A defect in the road in the Highlands, occasionally used by cyclists, may not be dangerous when it would be so if the road was in Central London and was habitually used for cycle races involving large numbers of competitors."

Furthermore, when deciding whether there is a danger, the Judge commented that the court is entitled to take into account the reasonable expectations of the public as to the standard of maintenance of the highway surface. A defect on a remote rural mountain road, which was a wholly unremarkable and a commonplace feature of such a location, could in the ordinary course of human affairs be regarded as something that was not properly classified as a danger to the persons who were likely to use it.

Forbes comment

This common sense decision will be welcomed by local authorities, especially those with similar kinds of roads under its remit. Local authorities are under increasing financial pressure, and ultimately it makes sense for frequently used roads to be prioritised for repair.

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