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23 May 2013
Court of Appeal
LJ Longmore, LJ McFarlane and Sir Stanley Burnton
The claimant tripped over a cobblestone in the surrounding area of a tree pit near his home in October 2007 as a result of which he sustained personal injury. The relevant cobblestone was about an inch above the surface of surrounding cobblestones. The defendant's level of intervention was 20mm. By this account, the defendant was therefore in breach of its duty under section 41 of The Act.
However, the defendant was able to successfully defend the claim on the basis that the cobblestone was not dangerous at the time of the last annual inspection carried out some 11 weeks before the accident. It was below the intervention level and the judge at first instance believed there was no evidence or ‘reason' to believe it might become ‘dangerous' in the next 12 months. He accepted the defendant had a section 58 defence under The Act by operating a reasonable system of annual inspection and maintenance.
It became evident that the area surrounding the tree pit was in a state of disrepair and the claimant argued the area should be considered as a whole rather than the one cobblestone that caused his accident. The judge concluded that he should not have regard to the tree pit as a whole as to do that would make the defendant liable.
The claimant appealed this decision. On dismissing the appeal, the Court of Appeal concluded the interpretation of ‘the part of the highway' in section 41(2) of The Act related to the actual defect that the caused the accident rather than the whole of the area. The duty on the defendant was to exercise such care as in all the circumstances was ‘reasonably required'. Their Lordships noted that the trial judge had been impressed with the defendant's witness and there was no evidence to suggest there had been any flaw in their inspections. They held the claimant had to show the relevant defect that led to his accident was in a dangerous condition for some time as a result of the defendant's failure to repair. It was not "enough for the claimant to show the general area of the highway was in some way defective." Mills v Barnsley Metropolitan Borough Council  PIQR P291 followed.
Highway tripping cases are notoriously difficult to succeed with not least because the courts are reluctant to find against cash trapped local authorities. Mills v Barnsley Metropolitan Borough Council remains the leading authority in such cases. Local authorities are seemingly getting better at keeping good records of inspections. As the duty to inspect and maintain the highway is one of ‘reasonableness', it remains to be seen whether claimant solicitors will take many of these defended cases to trial in these challenging times.