Atkins v London Borough of Ealing

Under section 58 of the Highways Act 1980, a highway authority must prove that it took such care as was reasonably required to keep the highway safe. Where a manhole cover may tilt when stepped on, a system directed only at detecting uneven surfaces may be insufficient. The authority must address the distinct risk presented by insecure manhole covers and adduce evidence supporting any reliance on rarity, cost or impracticality. The court must balance the risk of serious injury against the burden on public resources, having regard to the statutory matters in section 58(2). It is unnecessary to determine the precise inspection frequency where the authority had no system at all for checking the relevant danger.

The claimant was injured when a manhole cover on a shopping street tilted as she stepped on it. The parties agreed damages at £2,750. The Brentford County Court entered judgment for the claimant, finding that the defendant highway authority had failed to establish the defence under section 58 of the Highways Act 1980.

The authority appealed. It argued that its monthly visual inspection system, which identified pavement trips of more than 19mm, was reasonable and that the judge had imposed too high a burden. The central issue was whether the authority had proved that its inspection arrangements were reasonably sufficient to detect an insecure or tilting manhole cover.

1. Appeal dismissed. The highway was dangerous because the manhole cover tilted when stepped on. The defendant had therefore failed to maintain the highway under section 41 of the Highways Act 1980. The remaining issue was whether it had proved the statutory defence under section 58.
2. The defendant’s inspection system was designed to detect trips or differences in level exceeding 19mm. It did not attempt to check whether manhole covers were secure or liable to tilt. The claimant’s pleadings had identified that specific hazard, and the adequacy of the inspection system was therefore properly in issue.
3. The burden under section 58 lay on the defendant. It had adduced no evidence that a system for checking manhole covers was difficult or impracticable, or that loose or tilting covers were so rare that such a system was unreasonable. The court was not required to prescribe the precise frequency of inspection where no system of relevant inspection existed.
4. In applying section 58(2), the court considered the character of the highway, the expected pedestrian traffic, the appropriate maintenance standard, the foreseeable risk of serious injury, and the absence of any matter making repair unreasonable. A shopping street required greater protection against the risk of a pedestrian falling into a manhole than the remote country road considered in Jackson v Gloucestershire County Council.
5. The judge had struck the necessary balance between private safety and the public burden of highway maintenance. The appeal was dismissed.

• Brentford County Court: HHJ Oppenheimer entered judgment for the claimant on 20 April 2006.
• High Court (Queen’s Bench Division): The appeal was heard with permission granted by the High Court on 4 July 2006 and dismissed on 17 October 2006.