Walsh v The Council of the Borough of Kirklees

On an appeal from findings of fact in a highway-defect claim, the appellate court must exercise caution and may intervene only where the trial judge was plainly wrong. That includes a demonstrable misunderstanding of relevant evidence or a failure to consider it, so that the decision cannot reasonably be explained or justified.

A claimant alleging breach of the highway authority’s statutory duty must prove that the highway was dangerous to traffic or pedestrians, that the danger resulted from failure to maintain or repair it, and that the injury or damage resulted from that failure. The danger must be one which the authority might reasonably be expected to guard against. Assessment of the evidence, including whether a pothole was sufficiently dangerous, is ordinarily a question of fact for the trial judge.

The claimant appealed against the dismissal of her claim under section 41 of the Highway Act 1980. She had fallen from her bicycle after encountering a pothole on a roundabout for which the defendant council was the highways authority.

The County Court judge accepted that the claimant had hit the pothole and been injured, but found that there was insufficient reliable evidence of its dimensions or condition to establish, on the balance of probabilities, that it presented a real source of danger. The appeal concerned whether the judge had failed to make proper use of photographs containing a tape measure. The High Court also considered the applicable principles governing appellate review of findings of fact.

1. Appeal dismissed. The trial judge had been entitled to dismiss the claim because the claimant had not proved that the pothole was a relevant danger.
2. A claimant alleging an actionable defect in a highway must establish: (i) that the highway was dangerous to traffic or pedestrians; (ii) that the dangerous condition was created by failure to maintain or repair the highway; and (iii) that the injury or damage resulted from that failure. If an actionable defect is proved, the highway authority may seek the statutory defence under section 58(1) of the Highway Act 1980 (para [21]). The relevant danger is one which the authority might reasonably be expected to guard against (para [22]).
3. Appellate courts must be cautious before overturning factual findings. They may intervene where the trial judge was plainly wrong, including where the finding had no evidential basis, or where there was a demonstrable misunderstanding or failure to consider relevant evidence which made the decision incapable of reasonable explanation or justification (paras [23]-[24]).
4. If the judge had failed to use measurements available from the photographs, that would have constituted such an error. On reviewing the photographs and the submissions, however, it was impossible to determine the effect of road material lying beneath the tape measure and elsewhere within the alleged pothole. The judge was therefore entitled to find that the evidence did not reliably establish its dimensions or condition (paras [25]-[26]).
5. The judge had considered the relevant evidence, including the evidence of the highway inspectors. The assessment was a question of fact and disclosed no justiciable error permitting appellate intervention (para [27]). The appeal was accordingly dismissed (para [28]).

1. High Court (Queen’s Bench Division): On appeal from His Honour Judge Davey QC sitting at the Bradford County Court, the appeal was dismissed. The County Court’s dismissal of the claim was upheld.