Harrison v Derby City Council

Under section 58 of the Highways Act, a highway authority must establish that it took the care reasonably required in all the circumstances to keep the highway safe for traffic, including pedestrians. The court must undertake the necessary risk assessment, even where the authority made no formal assessment. Relevant considerations include how quickly defects may arise, the incidence of defects associated with a particular feature compared with general statistics, and whether that feature warrants more frequent inspections.

Harrison v Derby City Council arose from a claim for damages after Mrs Harrison tripped in a pothole on a Derby pavement. Nottingham County Court, before His Honour Judge Mithani, entered judgment for her in the agreed sum of £25,000 on 10 July 2007. The Council sought permission to appeal, contending that six-monthly inspections were adequate and that cellar voids did not create a particular need for more frequent inspections. The central issue was whether the Council could establish the statutory defence under section 58 of the Highways Act.

1. Permission granted. The Court of Appeal granted the Council permission to appeal. It did not determine the merits of the statutory defence.
2. Statutory assessment. Lord Justice Ward held that the issue under section 58 of the Highways Act required an assessment of whether the authority had taken the care reasonably required in all the circumstances to keep the highway safe for traffic, including pedestrians. A risk assessment remained necessary even though the Council had carried out no formal risk assessment. The judge had to conduct that assessment if necessary.
3. Relevant evidence. The absence of a formal risk assessment did not itself establish a failure to maintain. The evidence required evaluation, including the speed at which potholes could develop, the frequency of inspections, and whether cellar voids created a particular susceptibility to collapse. The evidence that approximately 800 potholes had been identified, but only five were associated with cellar voids, raised an arguable question whether those locations required more frequent inspection than other streets. The court also noted the apparent concession that ordinary footways required inspection only every six months where cellar-collapse difficulties were absent.
4. Disposition. The proposed appeal was fact-specific and raised no significant point of principle, but the argument concerning the comparative incidence of collapsed cellar defects merited consideration. Lord Justice Moore-Bick agreed. The application was granted, with mediation and possible compromise encouraged because the likely appeal costs exceeded the amount in dispute.

• Nottingham County Court: His Honour Judge Mithani held that the Council had not established the statutory defence under section 58 of the Highways Act and entered judgment for Mrs Harrison for £25,000 on 10 July 2007.
• Court of Appeal (Civil Division): Gage LJ refused permission on paper. On renewal, Ward LJ, with Moore-Bick LJ agreeing, granted permission to appeal. The merits were not determined. The judgment is reported at [2008] EWCA Civ 223.