Cenet (nee McGlennon) v Wirral Metropolitan Borough Council

A highway authority’s duty is to maintain the highway to a standard reasonably safe for ordinary users. Whether a defect is dangerous depends on its character, location and use, assessed in the context of the relevant part of the highway. A defect in a carriageway should not be judged by standards applicable to a pavement merely because pedestrians may cross there. Minor carriageway irregularities will not ordinarily constitute a real source of danger where the risk is low and repair would impose a disproportionate burden. The appellate court may interfere where the first-instance judge applied the wrong standard in deciding dangerousness.

The claimant obtained judgment in the Liverpool County Court for damages arising from a trip on a highway, subject to 30 per cent contributory negligence. The defendant highway authority appealed, contending that the claimant had not proved the accident, that the defect was not dangerous for the purposes of section 41 of the Highways Act 1980, and that the statutory defence under section 58 was available.

The application before the High Court was initially for permission to appeal. Permission was granted and the appeal was heard. The central issues were whether the trial judge’s credibility findings were fatally flawed and whether he had assessed the alleged defect by the correct standard.

1. Ground 1. The trial judge was entitled to accept the claimant’s evidence and to find that the accident occurred as alleged. Although the witness had an unusual history of involvement in similar claims, the judge had considered that history, assessed the witnesses in person and reached a concluded view about their credibility. The circumstances were materially different from those in Francis and Others v Wells and Churchill Insurance Company Ltd [2007] EWCA Civ 1350, where the judge had failed to step back and assess the combined effect of the evidence.
2. Ground 2. Section 41 of the Highways Act 1980 required the defect to be assessed as part of the carriageway. The trial judge erred by treating the location as more akin to a pavement because pedestrians were likely to cross there. Pedestrian use did not convert that part of the carriageway into a pavement or justify applying the lower pavement repair threshold.
3. The governing question was whether the defect constituted a real source of danger to ordinary users. Applying the approach in Rider v Rider [1993] 1 QB 505 and the observations in Mills v Barnsley Metropolitan Borough Council [1992] PIQR P291, the depression was a minor carriageway defect, readily avoidable by a person paying proper attention. Its risk was low, and treating similar defects as requiring repair would impose a disproportionate burden.
4. Ground 3. It was unnecessary to determine the section 58 defence. Had the defect been dangerous, the trial judge’s findings about the authority’s inspection system would arguably have supported his conclusion on that defence. The permission application was granted and the appeal was allowed.

1. Liverpool County Court: His Honour Judge Platts gave judgment for the claimant on 3 May 2007, awarding £2,275 and costs, subject to 30 per cent contributory negligence. Permission to appeal was refused.
2. High Court (Queen’s Bench Division): Permission to appeal was granted and the appeal was allowed.