Demetrios Karpasitis v Hertfordshire County Council

Section 41 of the Highways Act 1980 requires a highway authority to maintain each relevant part of a highway so that it is reasonably passable for ordinary traffic and free from danger caused by its physical condition. The assessment is fact-sensitive. It includes the character and location of the highway, reasonably foreseeable use, and reasonable public expectations. A grass verge ordinarily attracts a different standard from a carriageway, but passage by pedestrians or cyclists may constitute normal use where it is reasonably foreseeable. A highway authority may establish the statutory defence under section 58 by proving competent and reasonable inspection and maintenance arrangements. A common-law duty generally requires a positive act affecting highway safety, rather than a mere omission to warn. Contributory negligence may arise where a claimant cycles onto a verge at excessive speed without allowing time to identify defects.

The claimant was seriously injured when his bicycle struck a substantial hole in a grass verge beside a footway and the A10. He alleged that Hertfordshire County Council, as highway authority, had breached section 41 of the Highways Act 1980 and a common-law duty of care.

The statutory claim concerned whether the verge was part of the highway, whether the defect made the highway dangerous for ordinary users, whether it caused the accident, and whether the council had established the section 58 defence. The common-law claim concerned alleged misfeasance or omission in relation to signage indicating that cycling was not permitted. The court also considered contributory negligence.

1. Statutory duty. Section 41 imposed a duty to maintain the relevant highway so that it was reasonably passable for ordinary traffic and free from danger caused by its physical condition. Dangerousness was a question of fact and degree. Foreseeability alone was insufficient, but the court could consider the location of the defect, reasonably foreseeable users and reasonable public expectations. Verges normally attracted a different standard from carriageways.
2. The path north of the Paul Cully bridge was formally a footway. That did not prevent passage by pedestrians or cyclists onto the adjacent verge from being a foreseeable and, on the facts, normal use of that part of the highway. The substantial hole was dangerous and required repair under section 41. It caused the accident.
3. Section 58 defence. The council bore the burden of proving that it had taken such care as was reasonably required. Six-monthly walked inspections of the low-use footway and verge were reasonable. The hole probably developed after the last inspection, and the contemporaneous inspection record supported the conclusion that the inspection had been carried out competently. The statutory defence was therefore established, defeating the section 41 claim.
4. Common law. Liability generally required a positive act affecting highway safety. The alleged failure to erect an end-of-cycle-route or no-cycling sign was an omission. In any event, the narrowed and uneven path and absence of signs authorising shared use indicated that cycling was not permitted. The council was not liable in negligence.
5. Contributory negligence. Had the claim succeeded, the claimant’s sharp turn onto the verge at 10 mph, without allowing sufficient time to see and avoid defects, would have constituted contributory negligence. Damages would have been reduced by 33 per cent.
6. There was judgment for the defendant.