Appeal: Court Agrees Depression Cycled Over by 12,400 Cyclists is Not Dangerous

Article

04 December, 2018

Surrey County Council v Hilliard (2018) QBD (Slade J) 16/10/2018

Surrey County Council successfully appealed a district judge's decision that it was in breach of section 41 of the Highways Act 1980 after a cyclist was injured in a closed road race.

The facts

The claimant had taken part in a non-competitive closed road cycle. There were roughly 16,000 cyclists cycling 100 miles. A depression in the road measuring at least 30mm deep caused the claimant to fall off his bicycle and suffer personal injury.

Prior to his accident, 12,400 other cyclists had passed over the defect without incident. In the run up to the event, the organiser, Ride London, had carried out inspections of the road and reported defects over 40mm. Thames Water had also commissioned an inspection of the road under s.81 New Roads and Street Works Act 1991. That report referred to "trip hazards", including the one that caused the accident.

The judge accepted that he should not impose an unreasonably high standard of repair, but concluded that the highway was dangerous to traffic and that there had been a failure to maintain the road. The claimant was awarded £38,000 in damages.

The appeal

The defendant appealed arguing that the Judge had:

  • applied the wrong legal test, namely Rider v Rider [1973], when he should have followed the later cases of James v Preseli Pembrokeshire DC [1993] and Jones v Rhondda Cynon Taff CBC [2008];
  • failed to evaluate the unchallenged fact that 12,400 cyclists had gone past the same spot without incident;
  • placed undue weight on the Thames Water commissioned report that had referenced the trip hazard.

The Court overturned the "perverse" decision finding that the defendant had not breached section 41. Although, the Court found that the district judge had applied the correct legal test, he had not evaluated all the relevant evidence. The fact that 12,400 cyclists had passed over the defect was overwhelming evidence that the road was not dangerous. The Thames Water report had been commissioned to look for pedestrian trip hazards, and not to consider whether the road was dangerous for ordinary traffic

Forbes comment

Whilst the Court found that the Judge had eventually applied the correct legal test, it is worth reminding ourselves that approach to be followed is that set out in Jones v Rhondda Cynon Taff CBC [2008] EWCA and James v Preseli Pembrokeshire DC [1993] P.I.Q.R. P114.

In Jones, the Court of Appeal deemed that section 41 required that a highway be maintained in such a state of repair that it was reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition. In James, the Court found that an unreasonable burden should not be placed on authorities and there should be a reasonable balance between public and private interest.

In this case, the relevant evidence was not in dispute. Following Jones, the question to be determined was clear: had the defendant failed to maintain the relevant part of the highway in such a state of repair that it is reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition? The fact that the relevant part of the carriageway had been passed at the material time by 12,400 cyclists without incident was overwhelming evidence that the obligation to maintain the highway, as required by the Highways Act 1980, s.41, had been complied with.

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