Dalton v Nottinghamshire County Council

For liability under section 41 of the Highways Act 1980, a highway defect must create a danger which may reasonably be anticipated from ordinary public use. Pedestrians in an urban area may be expected to tolerate reasonable changes of level, but not paving which is loose, unstable and liable to shift or wobble underfoot.

The statutory defence under section 58 fails where, having regard to the location, expected use and visible condition of the highway, a proper inspection should have identified the danger and led to immediate repair. A highway authority’s own safety classification does not decide dangerousness, but its identification of an immediate or imminent hazard is powerful evidence of it.

Mrs Dalton fell in a pedestrianised town-centre square after stepping on a small, irregular paving block near utility-service covers at the entrance to an alleyway. The block was loose, unstable, proud of adjoining blocks and capable of rocking. The County Council was the highway authority responsible for maintenance.

Hamblen J held the Council liable under section 41 of the Highways Act 1980 and rejected its section 58 defence. The Council appealed, challenging the factual findings, dangerousness, causation, the adequacy of its inspection regime and the rejection of the statutory defence. The central issues were whether the defect was dangerous and whether the Council had proved reasonable care to secure that the highway was not dangerous.

Appeal dismissed. The court upheld Hamblen J’s findings that the paving block was in materially the same loose and unstable condition at the time of the accident as when it was later made the subject of an urgent repair order.

1. The condition was dangerous for the purposes of section 41 of the Highways Act 1980. The block was not merely uneven. It was loose, wobbling, proud of adjacent paving and capable of altering its height relative to them. In an urban pedestrian area, a person may expect reasonable changes of level but not a shifting surface underfoot. No scientific finding of the precise degree of movement was required. The judge’s finding that the instability and level difference caused Mrs Dalton to overbalance was justified.
2. The later category 1 repair order did not replace the court’s independent assessment of dangerousness. Consistently with Esdale v Dover District Council [2010] EWCA Civ 409, non-compliance with a council policy is not conclusive of the statutory question. However, a council’s own identification of an immediate or imminent hazard was powerful evidence that users faced a danger against which reasonable protective steps were required.
3. The Council did not establish the section 58 defence. The square had substantial pedestrian and vehicular use, and the alley entrance attracted concentrated pedestrian traffic. The public should not expect a loose and wobbling paving stone in that location. The block’s appearance and setting called for the close inspection which the inspector himself regarded as prudent. Such an inspection should have detected the instability at the inspections before the accident and prompted immediate repair. The Council therefore failed to prove that it had taken the care reasonably required to secure that the area was not dangerous.

• Court of Appeal (Civil Division) — dismissed the Council’s appeal and upheld the finding of liability: [2011] EWCA Civ 776.
• High Court of Justice, Queen’s Bench Division, Nottingham County Court — Hamblen J held the Council liable under sections 41 and 58 of the Highways Act 1980.