05 July, 2011
The High Court has once again provided guidance for determining the test as to whether a defect constitutes a danger for the purposes of establishing a breach under s.41 Highway Act 1980.
The Claimant had tripped over a manhole cover which protruded 15mm. The Judge at first instance took the views of witnesses of what constituted a danger and concluded that as the repair had been repaired by the highway authority post accident it must have been unsafe.
Mr Justice Eady reiterated the underlying principles as set out in Court of Appeal cases of Mills v Barnsley MBC (1992) and James v Preseli Pembrokeshire DC (1993).
The fundamental question was whether the relevant part of the highway was such that it could be characterised as sufficiently dangerous to amount to a breach. The court had to carry out a balance between private and public interests, since expenditure of public funds has to be prioritised and the threshold should not be set unrealistically high.
In addition, an assessment had to be made by the court of whether it would be reasonable to leave the risk without carrying out any work to eliminate it. The court when considering their judgment on the nature of the defect and whether it was reasonable to correct it or leave it, would need to know something about the available budget and the competing priorities.
In terms of the test of dangerousness, Mr Justice Eady stated that the Judge had to carry out the balancing exercise themselves and should not take into account other people's views of what was dangerous. The Judge confirmed that an inspector's opinion was not relevant to this issue otherwise legal obligations would be defined by the opinion of an inspector rather than judicial determination. However, no criticism was made of a highway inspector adopting a rule of thumb in determining whether there was a duty to repair. Furthermore, the mere fact that work had been carried out did not mean that there was a duty to carry it out to avoid the argument that is often raised that the Council repaired the defect because it was dangerous.
The court can also take into account whether they have been previous accidents having regard to its usage or complaints. Based on the above assessment the Judge concluded that the protrusion did not give rise to a real source of danger and the defect was of a low order and the fall caused by inattention or misfortune.
More encouraging especially given the current squeeze on highway repair budgets, Mr Justice Eady when carrying out the balance exercise between private and public interests stated that "I must recognise that highway authorities simply cannot achieve perfection and provide over the thousand miles of pavement for which they are responsible a surface which is entirely free from all irregularities or changes in level at all."
The case reiterates the established case law that the courts do not encourage use of a mechanical test for determining whether a protrusion is a real source of danger. The decision highlights the fact the Court may take into account financial resources on determining the balancing test and the added risk of imposing too high a burden on highway authorities in eliminating all risks, if that exercise is not undertaken correctly.