Taylor v Rochdale Metropolitan Borough Council

An appellate court should not substitute its own factual conclusion where the trial judge had material evidence supporting the finding and properly assessed it. For the statutory defence under section 58(1) of the Highways Act 1980, a highway authority must prove that it took the care reasonably required in all the circumstances to secure that the relevant highway was not dangerous for traffic. A reasonable inspection system is relevant, but does not remove the need to assess the highway’s condition at the material time. A later measurement of a defect does not necessarily establish that the same hazard existed earlier, particularly where the evidence indicates gradual deterioration. An accident alone does not prove that the authority was negligent.

The claimant was injured after tripping on an uneven pavement outside a neighbour’s property. At Oldham County Court, Mr Recorder Lyon found that the claimant had not established a sufficiently serious defect at the time of the accident and rejected liability against the local authority. Damages had been agreed at £24,000.

The claimant appealed, challenging the Recorder’s assessment of the pavement condition, the highway inspector’s evidence and the application of the statutory defence under section 58(1) of the Highways Act 1980. The respondent abandoned a cross-notice concerning whether the claimant had slipped rather than tripped. The central issue was whether the Recorder’s finding that the injury was not caused by the defendant’s fault was sustainable.

Appeal dismissed unanimously. Sedley LJ gave the first judgment, with which Astill J agreed. Peter Gibson LJ separately agreed with the conclusion and reasoning.

1. The Recorder’s reasoning was not expressed in an ideal order, and some passages were equivocal. Nevertheless, the Court of Appeal could identify sustainable findings underlying the decision. The Recorder was entitled to accept the highway inspector’s evidence that he would have measured and repaired a defect exceeding one inch if it had been present during his inspection shortly before the accident.
2. Section 58(1) of the Highways Act 1980 requires the authority to prove that it took such care as was reasonably required in all the circumstances to secure that the relevant part of the highway was not dangerous for traffic. A reasonable inspection system and its proper operation are relevant to that inquiry, but an inspection system is not a substitute for considering the evidence about the highway’s actual condition at the relevant time.
3. The post-accident inspection established a one-and-one-eighth-inch lip in April 1996. However, the neighbour’s evidence indicated gradual deterioration over a period of years. The Recorder was therefore entitled to decline to infer, on the balance of probabilities, that a defect of the same severity existed on 1 February 1996 and had been missed by the inspector.
4. The claimant’s accident and the later photograph did not compel a finding of negligence. The inspector’s records, his evidence and the absence of a prior report of the relevant defect provided material supporting the Recorder’s conclusion. It was not open to the appellate court to substitute a different factual conclusion merely because another inference might have been available.
5. The Court noted that, had a dangerous defect been established at the relevant time, it would have been necessary to consider whether the inspection was adequate and whether that defect caused the accident. That issue did not arise on the findings made.

The appeal was dismissed. A section 11 order was made concerning the respondent’s costs, and the appellant’s costs were to be assessed under the Community Legal Services Costs Regulations 2000.

1. Court of Appeal (Civil Division): Appeal dismissed.
2. Oldham County Court: Mr Recorder Lyon found that liability had not been established following the claimant’s pavement accident.