Bell v London Borough of Havering

In a highway-maintenance claim, whether a physical feature is a foreseeable danger is fact-sensitive and depends on its configuration and context. An unusual terraced arrangement of brick-edged planters and steps may be dangerous even if long-standing, familiar to local residents, or capable of a benign use. An appellate court should respect a trial judge’s credibility findings and primary findings of fact where the evidence was carefully analysed and the conclusions were open to the judge. It may inspect photographs and form its own view on a physical defect, but should not interfere without legal error or where the trial judge had a material evidential advantage. A contributory-negligence apportionment should stand if within the range reasonably open to the trial judge.

The claimant sued the London Borough of Havering after falling on terraced paving outside homes in Pimpernel Way, Romford. She alleged that her foot slipped from the brick edge of a concrete-filled planter, causing a serious ankle fracture. The council challenged her credibility, the alleged dangerousness of the planter under section 41 of the Highways Act 1980, and the assessment of contributory negligence.

HHJ Hand QC accepted the claimant’s account, found the planter to be a foreseeable danger for which the council was liable, and entered judgment for damages to be assessed subject to a one-third reduction for contributory negligence. The council appealed to the Court of Appeal on all three issues.

The appeal was dismissed unanimously. Jackson LJ gave the leading judgment. Hedley J and Carnwath LJ agreed.

1. Credibility and primary facts. The inconsistencies in the letter of claim, medical records and descriptions of the accident had been fully argued at trial. The trial judge had heard the witnesses, assessed the claimant under cross-examination and considered the inconsistencies in detail. His conclusion that the claimant’s account was truthful was open to him on the evidence. This was not an extreme case justifying appellate reversal of primary findings.
2. Dangerousness under section 41. The question whether the highway condition constituted a foreseeable danger was contextual. The planters occupied irregular positions across terraced paving and, after the trees had been removed, created drops of up to four inches from the brick edges to adjoining steps. The Court of Appeal accepted that the planters did not operate as convenient ramps and upheld the finding that they presented a foreseeable danger for which the council was liable under section 41 of the Highways Act 1980.
3. The court could inspect the photographs and form its own view, but the trial judge had an evidential advantage because he had heard local witnesses and evidence about other falls. There was no misdirection in law or sufficient basis for interference. The principles in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR P291 were considered, but Carnwath LJ observed that the present case involved materially unusual topography and was factually a long way from Mills.
4. Contributory negligence. Although another judge might have selected a different apportionment, one-third was within the range reasonably open to the trial judge.

The trial judgment therefore stood: liability was established, damages were to be assessed, and the award was subject to a one-third reduction.

• Court of Appeal (Civil Division): the council’s appeal was dismissed on credibility, dangerousness under section 41 of the Highways Act 1980, and contributory negligence: [2010] EWCA Civ 689.
• Central London County Court, HHJ Hand QC: the claimant’s account was accepted; the planter was found to constitute a foreseeable danger for which the council was liable; damages were to be assessed subject to a one-third reduction for contributory negligence.