Kent County Council v Lawrence

A highway defect is actionable under section 41 of the Highways Act 1980 only if it is dangerous in the legally relevant sense. The issue is not whether some harm was foreseeable, but whether danger could reasonably have been anticipated from continued public use and whether, having regard to private and public interests, it was reasonable to require remedial work. The court must make that assessment itself, taking account in general terms of financial and practical constraints. A fixed measurement cannot determine dangerousness in every case. Evidence of a highway employee’s opinion, a claimant’s view, or the fact that repairs were later undertaken does not establish breach of statutory duty. On appeal, a conclusion within the reasonable range should not be substituted merely because the appellate judge might have reached a different view, but intervention is justified where irrelevant considerations materially affected the decision.

The claimant recovered £5,000 at a fast-track trial before His Honour Judge Caddick in the Maidstone County Court after tripping over a manhole cover protruding above a pavement in Newbury Avenue, Maidstone. The claim alleged breach of section 41 of the Highways Act 1980. The judge estimated the protrusion at at least 15mm and found for the claimant.

The highway authority appealed. It argued that the judge had applied too high a standard, had failed to conduct the required balancing exercise, had relied on irrelevant opinions and had misconstrued the inspector’s evidence. The central issues were the proper test for dangerousness and the extent to which the High Court could interfere with the county court’s evaluative judgment.

1. Appeal allowed. The county court judge’s conclusion was within the range of reasonable conclusions, and he had not misunderstood the statutory test. However, he had materially relied on irrelevant considerations, permitting the appellate court to reconsider the issue.
2. The governing principles stated in Mills v Barnsley Metropolitan Borough Council [1992] PIQR P 291 and James v Preseli Pembrokeshire District Council [1993] PIQR P 144 required consideration of whether the highway was dangerous in the sense that danger could reasonably have been anticipated from continued public use, whether the condition resulted from failure to maintain or repair, and whether injury resulted. A court must also assess whether it was reasonable to require the authority to eliminate the risk, balancing private and public interests and having regard to financial and practical constraints.
3. The use of a rough operational guide, such as a 20mm intervention threshold, could be practical for inspectors, but it could not replace the court’s fact-sensitive judgment. No universal measurement determined dangerousness.
4. The judge should not have relied on the views of the claimant or her daughter about whether the defect was dangerous. That was the court’s legal judgment. Nor did the inspector’s instruction to make the location safe establish that the statutory threshold had been met. The fact that remedial work was carried out did not itself show that there had been a duty to carry it out.
5. The appellate approach was governed by the principles stated in Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748 and G v G [1985] 1 WLR 647. The court should not interfere merely because it preferred another reasonable solution, but could do so where irrelevant matters were taken into account or the conclusion was impermissible.
6. On the photographs and the evidence, the protrusion appeared unremarkable. There had been no evidence of another accident at the spot despite its location in a densely populated residential area. It did not present a real source of danger to a reasonable person. The risk was low and the claim therefore failed.

The appeal was from an order made by His Honour Judge Caddick at Maidstone County Court on 4 November 2010 following a fast-track trial. Judgment had been entered for the claimant in the agreed sum of £5,000, with costs to be assessed. The county court judge refused permission to appeal. The High Court granted permission at the outset and allowed the appeal.