Barker v Lancashire County Council

For liability under section 41 of the Highways Act 1980, a claimant must identify the particular highway defect that caused the injury. Showing that the general area was defective is insufficient. In considering the section 58 defence, the inquiry will ordinarily focus on that defect, rather than unrelated nearby defects. An authority may establish the defence through a reasonable inspection system, diligent inspectors, a defect below the intervention level at the last inspection, and no reason to expect danger before the next inspection. An appellate court cannot supply missing factual findings to support a wider case. The court indicated, obiter, that the statutory reference to the relevant part of the highway is more apt to describe the feature causing injury than a wider area.

The claimant tripped on a raised cobblestone beside a tree pit in a semi-pedestrianised street. The first-instance judge, His Honour Judge Butler, found that the cobblestone created a breach of the statutory duty under section 41 of the Highways Act 1980, but held that the Council had established the section 58 defence through its annual inspection system and the absence of danger at the last inspection.

The judge stated that the result might have differed if the whole tree pit could be considered, because untidy and loose cobblestones might have led to its being relaid. The claimant appealed, arguing that the section 58 inquiry could extend beyond the particular cobblestone to the wider tree-pit area. The central issue was whether the Council had proved the statutory defence on the findings made.

1. Appeal dismissed. The Court of Appeal unanimously upheld the decision of the county court.
2. Under section 41 of the Highways Act 1980, a claimant in a tripping case must identify the particular defect that caused the injury. It is insufficient to establish only that the general area was defective. The court relied on Mills v Barnsley Metropolitan Borough Council [1992] PIQR P 291 and James v Preseli Pembrokeshire District Council [1993] PIQR P 114. The principal focus of the section 58 defence will likewise ordinarily be the identified defect.
3. The Council had established the defence under section 58. Its annual inspection system was reasonable. The trial judge found that experienced and conscientious inspectors would have identified and remedied the cobblestone if it had exceeded the Council’s 20 millimetre intervention level at the August inspection. The cobblestone was not then dangerous, and tree-root growth had raised it during the following 11 weeks. There was no sufficient basis for expecting danger before the next inspection.
4. The alternative case based on the condition of the tree pit as a whole could not succeed. The judge’s observations that the inspectors might have decided to relay the area were speculative and did not amount to findings that wider defects required such work or that relaying would have occurred before the accident. The Court of Appeal could not conjure up those findings, particularly in light of the judge’s positive assessment of the inspectors’ diligence.
5. Longmore LJ stated that the wider construction of the phrase referring to the part of the highway to which the action relates did not require final determination. He considered it more apt to describe the feature causing the injury than a wider area. His reference to the need to avoid unreasonably high highway-maintenance standards, drawing on the reasoning in Mills, was also explanatory and non-dispositive.

• Court of Appeal (Civil Division) — On appeal from the county court, dismissed the appeal and upheld the section 58 defence: [2013] EWCA Civ 582.
• Burnley County Court — His Honour Judge Butler held that the Council had taken the care reasonably required under section 58, although he indicated that the result might have differed if the whole tree pit could properly be considered.