Drape v Newcastle City Council

Whether a highway authority was negligent in relation to a hazard is ordinarily a fact-sensitive question. No general standard can determine the outcome without considering the particular hazard and all the surrounding circumstances. Relevant matters may include the location, the likelihood that the hazard will be obscured, and the characteristics of the area and its pedestrians.

On appeal, the court should not rerun that factual assessment. Permission should be refused unless the trial judge’s conclusion was plainly wrong or involved an error of law. A fact-sensitive finding that a particular obstruction was an unreasonable and foreseeable danger does not impose a general or impossible burden on highway authorities.

The appellant challenged a decision of His Honour Judge Langan QC in the Newcastle-upon-Tyne County Court, which had found that an obstruction in a busy shopping area constituted an unreasonable and foreseeable danger. The challenge was renewed after Potter LJ refused permission in a reasoned written judgment.

The appellant argued that the county court judge had imposed too high a standard of care on highway authorities and had failed to reconcile the relevant circumstances with the absence of earlier complaints and the failure of highway inspectors to identify the hazard. The central issue was whether the judge’s conclusion disclosed an error of law or was plainly wrong.

1. Application dismissed. The Court of Appeal refused permission to appeal. The county court judge’s decision was a straightforward, finely balanced finding of fact, and there was no prospect of showing that it was plainly wrong.
2. There was no inconsistency between giving substantial weight to the absence of previous complaints and the highway inspectors’ failure to recognise the hazard, and then considering the particular hazard in the context of all the surrounding circumstances.
3. In cases of this kind, no general standard can be stated from which the result is mechanically deduced. The judge must assess the facts and apply judgment to them. It was open to the judge to regard the obstruction as a relevant hazard because it was situated in a busy shopping area, was liable to be obscured, and was in a place where pedestrians might be thrown slightly off balance.
4. The appellate court should not rerun the factual enquiry or substitute its own view, particularly at the permission stage. The photographs did not demonstrate that the judge’s conclusion was unavailable to him.
5. The decision contained no general direction as to how the council should conduct its operations and therefore did not impose impossible burdens on highway authorities.

• Court of Appeal (Civil Division): Potter LJ refused permission to appeal in a reasoned written judgment. On renewal, Lord Justice Buxton dismissed the application on 8 May 2002.
• Newcastle-upon-Tyne County Court: His Honour Judge Langan QC decided the underlying claim on 8 January 2002 and found the obstruction to be an unreasonable and foreseeable danger.