Maguire v Lancashire County Council

For liability under section 41 of the Highways Act 1980, the question is whether the highway was in a condition in which danger could reasonably have been anticipated from its continued use by the public. A court must focus on the condition of the highway at the accident location and assess all the evidence in context. The absence of previous accidents or complaints is, at most, a neutral consideration. It cannot displace clear photographic and expert evidence of a sharp, uneven and inadequately lit surface. The appeal also illustrates that appellate intervention is justified where a trial judge adopts the correct legal test but misapplies it to uncontradicted evidence.

The claimant injured his ankle when he stumbled while jogging on a footpath in Blackpool. The path had a sharp and uneven rise around a manhole cover. Photographs and an expert report recorded differences in level of about 3 to 4 inches and steep gradients, and the section was repaired shortly afterwards.

His negligence and statutory-duty claim under section 41 of the Highways Act 1980 was heard on liability only in Blackpool County Court. His Honour Judge Appleton dismissed it on 17 November 2003, relying principally on uncertainty about the accident mechanism and the absence of previous accidents or complaints. Permission to appeal was granted by Waller LJ. The central issue was whether the judge had correctly applied the dangerousness test to the evidence.

1. Appeal allowed. Judgment was entered for the claimant on liability, with the issue of quantum remitted to the County Court. The respondent was ordered to pay the costs here and below.
2. Lord Justice Auld held that the correct test was whether the highway was in such a condition that, in the ordinary course of human affairs, danger could reasonably have been anticipated from its continued use by the public. The trial judge was right to adopt that test from Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291.
3. The judge was nevertheless plainly wrong in applying the test. The decisive evidence was the clear photograph of a sharp and uneven rise of 3 to 4 inches at a steep gradient beside the manhole cover, together with the claimant’s identification of the accident location, the ankle injury requiring hospital treatment, the expert report and the prompt repair.
4. The absence of any previously reported accident or complaint was at best neutral. The judge had allowed that factor, and a misunderstanding of where and how the claimant stumbled, to distract him from the condition shown by the photographs and confirmed by the expert evidence. The danger was aggravated by inadequate lighting and was unlikely to have been familiar to regular users because of signs of recent works.
5. Lord Justice Gage agreed.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 1637: appeal allowed with costs here and below; judgment for the claimant on liability; quantum remitted to the County Court.
• Blackpool County Court — His Honour Judge Appleton dismissed the negligence and statutory-duty claim on 17 November 2003.