Demetrios Karpasitis v Hertfordshire County Council

Under Highways Act 1980, whether a highway is in disrepair and dangerous is fact-sensitive. Ordinary traffic may include pedestrians or cyclists using a grass verge where the circumstances make that use reasonably foreseeable. Foreseeability alone is insufficient; the physical risk, expected use, highway character and reasonable public expectations are relevant.

A highway authority relying on the statutory defence must prove that it took the care reasonably required in all the circumstances. Contemporaneous records may outweigh unsupported witness evidence. Putting part of an opposing witness statement to another witness in cross-examination does not require the whole statement to be accepted at face value.

The appellant was seriously injured when he cycled onto a grass verge beside a footway and struck a substantial hole. The respondent was the highway authority.

Following a split trial, the High Court found that the verge formed part of the highway, that the defect breached section 41 of the Highways Act 1980, and that it caused the accident. It nevertheless dismissed the claim, holding that the respondent had established the section 58 defence. It also rejected the alternative negligence claim.

The appellant challenged the section 58 finding and the common-law conclusion. The central issues were whether the verge was in disrepair for section 41 purposes and whether the inspection evidence established the statutory defence.

The appeal was allowed. Judgment was entered for the appellant for damages to be assessed, subject to a deduction of 33% for contributory negligence.

1. Section 41. Whether a defect makes a highway dangerous is a question of fact and degree. The statutory duty concerns ordinary traffic reasonably expected on the particular highway. A grass verge need not meet the standard applicable to a paved carriageway, but use by pedestrians or cyclists may nevertheless be ordinary use. On the evidence, the footway was known to be used by cyclists, the route had been depicted as a cycle route, and the layout made movement onto the verge foreseeable. The substantial hole therefore constituted disrepair and a dangerous defect.
2. Section 58. The respondent bore the burden of proving that it had taken the care reasonably required in all the circumstances. The judge wrongly treated the GPS data as having little or no weight and treated Mr Cooke’s statement as requiring acceptance in full. The contemporaneous GPS record and covering email demonstrated a strong prima facie case that no walked inspection had occurred. The statement’s assertion that an inspection had taken place was manifestly incredible and should have been given no weight.
3. Putting passages from Mr Cooke’s statement to another witness in cross-examination did not engage the rule in CPR 32.5(5) concerning putting part of an opposing witness statement in evidence. The court applied the reasoning in Anonima Petroli Italiana S.P.A. And Neste Oy -v- Marlucidez Armadora S.A. “The Filiatra Legacy” [1991] 2 Lloyd’s Rep 337. A party could challenge a misleading impression and submit that a witness was mistaken by reference to other evidence.
4. The section 58 defence therefore failed. It was unnecessary to decide the alternative common-law negligence claim. The proposed alteration to the contributory-negligence apportionment was not justified in light of the restraint required by Jackson v Murray [2015] UKSC 5.

• Court of Appeal (Civil Division): Allowed the appeal and entered judgment for the appellant, subject to a 33% deduction for contributory negligence. It did not determine the alternative common-law claim.
• High Court of Justice (King’s Bench Division): The Deputy High Court Judge dismissed the claim on 20 October 2023. He found a section 41 breach and causation but held that the respondent had established the section 58 defence.