Day v Suffolk County Council & Ors

Under Highways Act 1980, a claimant must prove that the highway was dangerous, that the dangerous condition resulted from failure to maintain or repair it, and that the injury or damage resulted from that failure. The authority may then rely on the statutory due-care defence. A finding that an inspection system was defective does not, by itself, establish liability. The defect must have had a causative connection with the accident, and the statutory factors include what the authority knew, or could reasonably have been expected to know, about the danger. On the facts, the judge was entitled to infer on the balance of probabilities that the pothole existed when the inspection took place and was missed because the inspection was conducted too quickly. The appeal was dismissed.

The claimant recovered damages from Suffolk County Council after driving over a pothole on a rural road on 26 December 2001. The county council appealed the Cambridge County Court judgment of HHJ O’Brien dated 10 January 2007.

The appeal challenged findings that the pothole was sufficiently dangerous, that it probably existed at the time of the council’s inspection on 28 October 2001, and that the inspector’s speed of about 25 miles per hour made the inspection inadequate. A further argument was raised orally that breach of the absolute duty to maintain under section 41 necessarily established liability once the inspection was found inadequate. The Court of Appeal dismissed the appeal and declined to determine that wider issue.

1. Appeal dismissed. The court upheld the findings that the claimant drove over a serious pothole, suffered injury and damage, and that the pothole was present on 28 October 2001.

2. The judge applied the balance of probabilities test correctly. He was entitled to infer from the size and effect of the pothole, the gradual deterioration of the road, evidence of its poor condition, and the surrounding inspection evidence that it was more likely than not to have existed at the earlier inspection. An appellate court should not interfere with such factual findings where the trial judge carefully assessed the evidence and witnesses.

3. The adequacy of a highway inspection is fact-sensitive. On this narrow, poor rural road, travelling at about 25 miles per hour was too fast for an efficient inspection. A six-month inspection interval was capable of discharging the inspection obligation, subject to further considerations if complaints were received during that period.

4. The court applied the framework stated in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR 291: the claimant had to prove a dangerous highway condition, failure to maintain or repair, and resulting injury or damage before the statutory defence arose. The council then bore the burden of establishing the care required by section 58.

5. Pill LJ rejected the submission that an inadequate inspection necessarily established liability under the absolute duty in section 41. The causative effect of the inspection defect had to be considered. Section 58(2)(d), which directs attention to the authority’s actual or constructive knowledge of danger, indicated that an inspection breach alone was not always sufficient. If a pothole had arisen too shortly before the accident for the authority reasonably to know of it, the claim might fail even though an earlier inspection was defective. That discussion was expressly obiter and the other members of the court reserved their views.

6. Rimer LJ agreed that the wider relationship between sections 41 and 58 raised difficult questions which did not arise for decision. Sedley LJ likewise reserved his opinion. The order was that the appeal be dismissed.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 1436. Appeal dismissed.
• Cambridge County Court — HHJ O’Brien’s judgment of 10 January 2007. The claimant succeeded and was awarded damages, subject to a 40% reduction for contributory negligence.