Lawrence v Kent County Council

In a highway tripping claim, dangerousness is a fact-sensitive inference rather than a matter governed by fixed measurements. An appellate court reviewing such a finding must respect the trial judge’s advantages, but may assess for itself whether the facts justify imposing a duty on the highway authority. The more restrictive approach applicable to discretionary decisions does not apply. A factual witness’s opinion may be admissible where it conveys personally perceived relevant facts under the Civil Evidence Act 1972. Its weight depends on factors such as independence and possible interest. A 15 mm manhole-cover protrusion was insufficiently dangerous on the evidence, having regard to the need to balance public and private interests.

The claimant tripped over a manhole cover and claimed damages from Kent County Council. His Honour Judge Caddick found for the claimant, concluding that the protrusion was dangerous to pedestrians. On the Council’s appeal, Eady J allowed the appeal and held that the manhole cover was not dangerous. He also treated the views of the claimant’s daughter and the Council’s surveyor as irrelevant.

The claimant brought a second appeal to the Court of Appeal. The central issues were the correct appellate approach to a finding of dangerousness and whether the factual witnesses’ opinions could properly be taken into account.

1. Disposition. The Court of Appeal dismissed the appeal. Eady J had adopted the wrong appellate approach and was wrong to treat the witnesses’ views as irrelevant, but his ultimate conclusion that the defect was not sufficiently dangerous was correct.
2. Appellate review. An appeal concerning a primary finding of fact or an inference from facts is distinct from an appeal concerning the exercise of a discretion. Where the appellant shows a real prospect that the finding or inference is wrong, the appellate court must determine whether it is correct, while giving full weight to the trial judge’s advantages in hearing oral evidence. Where the appeal concerns judgment on unchallenged primary findings and inferences, intervention remains limited to conclusions outside the bounds of reasonable disagreement. This approach was explained in Datec Electronics Holdings Ltd v UPS Ltd [2007] 1 WLR1325 and Assicurazioni Generali SPA v Arab Insurance Group [2003] 1 WLR 577.
3. Dangerousness. Dangerousness in a highway tripping case is a finding or inference of fact. The appellate court retains sufficient oversight to assess whether the facts justify imposing a duty on the highway authority. The assessment is fact-sensitive. It must not be governed by rigid height thresholds or an unreasonably high standard. The court must balance private safety against the public interest in the reasonable allocation of highway resources, as illustrated by Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291 and James v Preseli Pembrokeshire District Council [1993] PIQR 144.
4. Factual witness opinions. Section 3(2) of the Civil Evidence Act 1972 permits a non-expert witness to express an opinion as a means of conveying relevant facts personally perceived. Such evidence is not automatically irrelevant. Its weight depends on the circumstances, including independence and possible self-interest. The treatment of factual witnesses’ impressions in Mills, Uren v Corporate Leisure (UK) Ltd & Another [2011] EWCA Civ 66 and Dalton v Nottinghamshire County Council [2011] EWCA Civ 776 supported that conclusion.
5. Application. Mrs Rose’s evidence was affected by her relationship with the claimant. Mr Cunningham’s contemporaneous report, read with his evidence, showed that he regarded the work as routine maintenance and would have used a more urgent category if he had considered the defect dangerous. His reference to making the manhole safe was not an admission of dangerousness. With that evidence given appropriate, rather than no, weight, the photographs, the absence of similar accidents and the 15 mm protrusion did not establish a danger which required the Council to eliminate it. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division): Dismissed the claimant’s second appeal and upheld the conclusion that the manhole-cover defect was not sufficiently dangerous.
2. High Court of Justice, Queen’s Bench Division: Eady J allowed the Council’s appeal from the county court decision: [2011] EWHC 1590 (QB).
3. County Court: His Honour Judge Caddick found for the claimant on liability.