Harrison v Derby City Council

A highway authority establishes the statutory defence under section 58 of the Highways Act 1980 by proving that it took the care reasonably required in all the circumstances. The assessment is fact-sensitive and must address the particular risks, the highway’s character and design, expected use, and the matters listed in section 58(2). A formal risk assessment is not invariably required. Where a general inspection regime is reasonable for ordinary defects, a separate regime for rare, sudden defects is not required merely because those defects may occur quickly. Proportionality remains relevant.

Carol Harrison fell on a pavement defect in Stockbrook Street, Derby, and suffered injury. Derby City Council accepted that the location was highway, that the defect was dangerous, and that it resulted from a failure to maintain or repair the highway. The council relied on the statutory defence under section 58 of the Highways Act 1980.

The council inspected the footway every six months. The claimant argued that footways over cellars required more frequent and more detailed inspections, supported by a risk assessment. HHJ Mithani held the council liable and entered judgment for £25,000. The central issue on appeal was whether the six-month inspection regime was sufficient.

Appeal allowed. Sir Anthony Clarke MR gave the leading judgment. Laws LJ and Longmore LJ agreed.

1. Under section 58(1) of the Highways Act 1980, the council bore the burden of proving that it had taken such care as was reasonably required in all the circumstances to secure that the footway was not dangerous to pedestrians. The statutory matters in section 58(2)(a)–(e) had to be considered, but the inquiry remained fact-sensitive.
2. The council had to assess the relevant risks and operate a system reasonably capable of securing a safe highway. The absence of a formal risk assessment did not, by itself, defeat the defence. The extent of any risk analysis depended on the nature and seriousness of the particular risk. A possible catastrophic cellar collapse might justify a more extensive analysis and internal cellar inspections, but that was a hypothetical qualification rather than the basis of the decision.
3. The court approved the approach in Jacobs v Hampshire County Council The Times, May 28, 1984 (QBD): the assessment had to consider the character and design of the highway, foreseeable traffic and use, and particular vulnerabilities, rather than only the general area and expected use. Atkins v London Borough of Ealing [2006] EWHC 2515 (QB) was merely an application of section 58 to different facts and did not assist on the present issue.
4. Here, six-monthly inspections were accepted as reasonable for the ordinary potholes encountered on comparable footways. Cellar-related defects were rare when compared with approximately 4,000 actionable potholes caused by other factors. Their potentially sudden occurrence did not make a separate, more frequent inspection regime reasonable or proportionate.

The council had therefore taken the care reasonably required under section 58. The order was: appeal allowed.

• Court of Appeal (Civil Division): Allowed the council’s appeal and concluded that the six-month inspection regime was sufficient.
• Nottingham County Court: HHJ Mithani found the council liable and on 10 July 2007 entered judgment for Harrison in the sum of £25,000 with costs. Permission to appeal was refused.