Griffiths v Gwynedd County Council (Rev 1)

For liability under section 41 of the Highways Act 1980, the question whether a highway is dangerous is objective. The highway need not guarantee users’ safety. It must be reasonably passable, without danger caused by its physical condition, for the ordinary traffic of the locality.

The assessment is fact-sensitive. It includes the road’s character and use, the defect’s position and visibility, the users likely to encounter it, reasonable public expectations, and the maintenance burden. A highway authority’s inspection policy or internal risk category may be relevant, but does not determine dangerousness. A remote rural road-edge defect may therefore fall short of the statutory threshold even though it causes an accident.

The claimant was injured when, while cycling downhill on a remote mountain road, he swerved to avoid stones, gravel and manure and encountered a damaged area at the road’s edge. The tarmac had broken away, exposing a lower gravel base.

He claimed damages against the county council as highway authority under section 41 of the Highways Act 1980. His Honour Judge Seys Llewellyn QC, sitting in the Wrexham County and Family Court, dismissed the claim because the defect was not dangerous. The judge would have reduced any damages by 20% for contributory negligence.

The claimant appealed, with permission limited to whether the defect was dangerous. The central issue was whether danger from continued public use could reasonably have been anticipated in the ordinary course of human affairs.

1. Appeal dismissed. The judge applied the correct objective test under section 41 of the Highways Act 1980. The duty is to maintain a highway so that it is reasonably passable without danger arising from its physical condition for the ordinary traffic of the neighbourhood. It does not require a condition that guarantees safety: Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR 291 and Jones v Rhondda Cynon Taff County Borough Council [2009] RTR 13.

2. Dangerousness had to be assessed in context. The road was a remote, narrow and steep rural road, used only sporadically by cyclists. The defect lay at the extreme edge, was visible for about 21 metres, and there was ample space to pass it. A cyclist proceeding normally could be expected to travel with care, having regard to the road’s general condition. The accident resulted from the unusual circumstance of swerving to avoid debris. It was open to the judge to find that a cyclist encountering the defect was a remote possibility and that danger from its continued use was not reasonably to be anticipated.

3. Reasonable users’ expectations and the implications of treating commonplace road-edge deterioration on hill roads as dangerous were relevant. A balance was required between private and public interests. The judge was entitled to take account of the maintenance burden, without confusing that issue with the separate statutory defence under section 58.

4. The council’s internal Category 1 policy did not decide the statutory question. Its assessment was relevant but the legal standard remained objective. The authority had not, in any event, adopted a rigid rule that every defect measuring 60 mm was Category 1. Devon County Council v TR [2013] PIQR 19 was factually distinguishable because it concerned a lengthy, deep rut beside a main road which the authority itself had treated as Category 1.

5. Because the defect was not dangerous, it was unnecessary to determine the section 58 defence. The council accepted that the defence would not have been available if the defect had been dangerous.

• Court of Appeal (Civil Division) Dismissed the claimant’s appeal: [2015] EWCA Civ 1440.

• Wrexham County and Family Court His Honour Judge Seys Llewellyn QC dismissed the claim, holding that the road defect was not dangerous. He would have reduced damages by 20% for contributory negligence if liability had been established.