Case No: CC/2007/PTA/0397
Neutral Citation Number: [2007] EWHC 3427 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand 
London WC2A 2LL

Thursday, 18 October 2007
BEFORE:

MR JUSTICE KING

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BETWEEN:

	CLARK	Claimant	
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LONDON BOROUGH OF HAVERING & ANOTHER	Defendant	

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From Wordwave International, a Merrill Communications Company
PO Box 1336, Kingston-Upon-Thames, Surrey KT1 1QT
Tel No: 020 8974 7300 Fax No: 020 8974 7301
Email Address: mlstape@merrillcorp.com
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Mr Muhammed Haque (instructed by Messrs Barlow Lyde & Gilbert) appeared on behalf of the Claimant

Miss Farrah Mauladad (instructed by Messrs Eversheds) appeared on behalf of the Defendant

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JUDGMENT
MR JUSTICE KING

1. This is an appeal against the judgment on liability delivered on 1 June 2007 by His Honour Judge Wulwik in the Romford County Court whereby he awarded agreed damages of £1,500 in favour of the claimant against both the appellant first defendant and the respondent second defendant, liability being apportioned equally between them.

2. The claim in these proceedings arose out of an accident on the 7th of May 2003 in which the claimant sustained a minor injury when he stepped into an uncovered stopcock housing situated on a grass covered patch of land (“the grass verge”) located between the fencing of his house at 65 Berwick Road and the footpath on Mygrove Road. This grass verge together with the footpath formed part of the highway known as Mygrove Road maintainable at public expense within the meaning of the Highways Act 1980. The appellant is the responsible highway authority. The respondent second defendant is the owner of and responsible for the maintenance of the stopcock and stopcock housing in question.

3. The relevant highway was accordingly made up of the metallic road, then the footpath and then the verge further away from the edge of the road. The evidence was that the verge was not an area where people generally walked. At the time of the accident the claimant was walking behind his lawn mower cutting the grass because he said the grass had got so long. He was selling his property and wanted to improve its presentation.

4. The judge found as a fact that the hole in the highway formed by the missing stopcock cover had existed not only on the date of the accident, 7 of May 2003, but also as long ago as March or April 2002 when a neighbour Mr Haydock had gone to look for the stopcock. On these findings the stopcock was uncovered and the hole in existence at the time of two highway inspections carried out by the appellant prior to the accident, namely the 22nd of July 2002 and 2nd December 2002.

5. At the heart of the issues raised on this appeal are the further  findings that at the date of the accident the hole formed by the missing cover was covered by grass some 6 inches or more in length so that it was obscured to the vision of the claimant; that it was similarly covered  and obscured by long grass in December 2002 and July 2002 at the date of the appellant’s inspections and this was the reason why  the appellant ‘s highway inspector had failed to see the missing  cover – it was concealed to him by the grass. According to Mr Haydock whose evidence was accepted by the Judge it was covered by overgrown grass when he went to look for the stopcock in the March or April that year and took some time to do so.

The case against the second defendant

6. The judgment against the second defendant was on the basis that it was in breach of its statutory duty to maintain the stockcock and its housing, and in common law negligence and nuisance. On the evidence the second defendant had no system for inspecting or maintaining the stopcock other than reacting to that which might be reported to it by the first defendant. There is no appeal against this finding on liability, although the second defendant does appear before me today as respondent to the appeal of the first defendant. It follows that whatever the outcome of the appeal the claimant will still have his judgment for his damages and costs against the second defendant. In these circumstances the claimant has not appeared before me today but has submitted written submissions on costs .He has made no submissions on the substantive appeal. In the event the issue of costs has become a matter of agreement between all parties.

The case against the appellant

7. The claim against the appellant was pleaded on two bases. The first was by reference to its statutory duty to maintain the highway under section 41 of the Highways Act 1980 and pleaded a breach of that duty. The second was in common law negligence. Common particulars were pleaded in support of both bases of claim. On the question of the grass, the pleaded case was simply that set out in particular 4 (g) namely “Failed to maintain the grass on the verge such that the missing stopcock/housing cover was visible to pedestrians using the highway and in particular the verge”. 

8. There was no express plea that the statutory duty to maintain the highway included a duty to cut the grass verge or that there was a negligent failure to cut the grass just before or to coincide with inspections by the highways inspector.

9. The evidence was that the appellant local authority did cut grass verges from time to time but not in its capacity as highway authority. The evidence of the frequency of  grass cutting was limited. The evidence of Mr Gray the highways inspector was that  grass cutting was nothing to do with his particular highway department. It was another department of the appellant which carried out such cutting. Mr Gray was not himself familiar with the precise details of the way that cutting was organised but gave evidence that he understood there was a two week policy of cutting but that this was not adhered to and that the interval of time between cuttings could be up to a month or more. It all came down to resources. At one stage under cross examination Mr Gray spoke “from guess work” that the appellant’s cutting months would be from around March to about August, the growth period. There was no other evidence on this issue other than that from Mr Haydock ,the neighbour, who said that  the appellant had cut the grass in past years but that the frequency of grass cutting had greatly reduced. There was for example no evidence of good practice from local authorities as to the timing of grass cutting.

The judgment against the appellant: common law negligence

10. The Judge found against the claimant on both pleaded bases that is to say both on the basis of a breach of statutory duty under section 41 and on the basis of common law negligence.

11. I turn first to his reasoning in negligence. This is set out in paragraph 24 of his judgment which I set out in full:

"The First Defendant's inspector, Mr Gray, accepted in cross‑examination that if the stopcock was uncovered the defect would have been considered urgent in terms of repair work.  Had it been observed by Mr Gray on 2nd December 2002, he would have reported it.  I find that the defect of the uncovered stopcock was a real source of danger to the public.  The public were entitled to walk on the grass verge if they wished to do so.  There was nothing to prevent them from doing so.  The First Defendant for its part conceded in closing submissions that there was a prima facie breach of duty on its part under section 41 of the Highways Act 1980.  I find that there was not merely a prima facie breach of duty on the First Defendant's part under section 41 of the Highways Act 1980.  I find that the First Defendant was also negligent at common law in failing to mow the grass on the verge, it having assumed responsibility to maintain the grassy area.  Had it mowed the grass on the verge, it would have discovered the missing stopcock box/housing cover and reported it.  The missing cover could have been replaced.  Alternatively, had they mown the grass the missing stopcock box/housing cover was likely to have been visible to members of the public on the verge and in particular to the Claimant, whereby again the accident could have been avoided.  Again had they mown the grass it would have been unnecessary for the Claimant to have done so and therefore the accident could have been avoided.”

12. The finding of the judge of a common law duty of care in these circumstances has been a matter of great concern to the appellant local authority and I can understand why. Before me today the respondent second defendant concedes that the judge was wrong in law to have found there was a common law duty of care upon the appellant to maintain the grass verge with a specific common law duty of care to cut the grass. This was a concession in my judgment rightly made. 

13. In my judgment there can be no question of the imposition in this case of such a duty of care. Given the concession made by the respondent before me and the neutral stance taken by the claimant, I need for present purposes go no further than refer to the principles set out in the well known decision of the House of Lords in Gorringe v. Calderdale Metropolitan Borough Council [2004] UKHL 15,[2004]1 WLR 1057 and in particular those in the judgment of Lord Hoffman. 

14. This appellant has only ever been sued in its capacity as highway authority, and as such, as Lord Hoffman explains, is not the occupier of the highway and does not owe either the statutory or common law duty of an occupier. Its duties have been more narrowly defined both by common law and statute. Merely because a local authority has a statutory power to do something, for example to cut grass verges, cannot in itself  and without more mean that there is a common law duty of care  cast  upon it to exercise that power, even if in the past it has done so.

15. In this case the judge appears to have founded the duty of care simply upon what  he termed an assumption of responsibility (“I find that the First Defendant was also negligent at common law in failing to mow the grass on the verge, it having assumed responsibility to maintain the grassy area”). There can be circumstances where a public authority acting pursuant to a statutory power or duty has entered into a relationship or undertaken responsibilities giving rise to a common law duty of care. At paragraph 38 in Gorringe, Lord Hoffman says this:

"My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty.  We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care.  In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty.  A hospital trust provides medical treatment pursuant to public law duty in the 1977 Act, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice.  The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute ... are sufficient to exclude it."

16. However, in my judgment on the facts of this case there can be no question of the local authority having entered into any sort of relationship with the claimant or assumed any responsibility towards him in relation to grass cutting in the sense used by Lord Hoffman. All the local authority has ever done in this case in relation to the cutting of the verge, is to exercise what must be assumed to be  a statutory power to cut the grass from time to time. This cannot be sufficient to amount to an assumption of responsibility towards the claimant so as to give rise to a duty of care at common law to cut the grass to protect the claimant or any other member of the public from risk of injury from potential dangers lurking within the grass. There is force in the submission of the appellant that the grass cutting undertaken by the particular department of the appellant, which was not the highway department, was not undertaken as a safety measure relating to the highway but was rather linked rather to ensuring the verge was kept neat and tidy for environmental purposes. Whatever be the position, and it is of general note in there was no real investigation at trial of the basis upon which the local authority undertook to cut grass verges, I am quite satisfied there was on the limited evidence before the court, no assumption of responsibility here for the purposes of giving rise to a duty of care as found by the judge in this case.

17. The liability of the appellant in this case lay if at all only in the alleged breach of its statutory duty to maintain the highway under section 41 of the 1980 Act and I turn now to the judge’s findings in relation to this. In fact as the judge observed in the passage set out above, in closing submission the appellant conceded a prima facie breach of such duty on its part. Its defence to the claim was in reliance upon the statutory defence under section 58 of the Act.

The breach of section 41 of the Highways Act 1980

18. Section 41 imposes upon appellant local authority as the highway authority for a highway maintainable at public expense, an absolute duty to maintain the highway. It is now well established that this means an absolute duty to keep the fabric of the highway in such good repair as to render its physical condition safe for ordinary traffic to pass at all seasons of the year. I take these words from Diplock L.J. in Burnside v. Emerson [1968]1 WLR 1490, 1496-7 (“The duty is ………to put it in such good repair as it renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition”) as adopted and explained in the well known decision of the House of lords in Goodes v.East Sussex County Council [2001] 1 WLR 1356.

19. At the stage of considering whether this absolute duty has been broken, before going on to decide whether in the event of breach the authority can make out the statutory defence available to it under section 58 of the Act, the only question for the court is whether at the material time the highway was in an dangerous condition by reference to the objective standard as formulated above – was its physical condition safe for ordinary traffic to pass? 

20. It is important to note the basis upon which at trial the appellant conceded that the physical condition of the verge as part of the highway, as found by the Judge at the time of the claimant’s accident, was in a dangerous condition so as to give rise to a breach of its duty under section 41. The physical condition being referred to in this concession was not the condition of the grass as such but the presence of the hole in the ground, the surface of the highway, resulting from the uncovered stopcock. This appears also to have been the reasoning of the Judge in his initial finding of a breach of the section 41 duty in the passage to which I have already referred, where he says “I find the defect of the uncovered stopcock was a real source of danger to the public”. It was not part of the concession and as I read the judgment no part of the Judge’s initial finding of a breach of statutory duty, that the duty to maintain this part of the highway imposed upon the appellant under section 41, included a duty to cut the grass of the verge or to maintain it at a short level or that the breach lay in part in the length of the grass.

A section 41 duty to cut the grass?

21. One of the grounds of appeal in this case is premised however on the basis that the judge found such a section 41 duty to maintain the grass did exist and that there was a duty on the appellant as highway authority in effect to keep it short at all times and that the judge was wrong in law so to find. As already indicated I do not think the Judge did find such a section 41 duty as such although I can appreciate why it may be thought that he had so found when one examines his reasoning for rejecting the claim to the statutory defence to which I will come in due course.

22. There is debate in the skeleton arguments as to whether a duty to cut grass growing on the highway can ever be part of the duty to maintain the highway imposed on a highway authority under section 41 of the Highways Act 1980. It is unnecessary for me to give any definitive ruling on this since I am quite satisfied that on the facts of this case that it could not be said that the highway in question, i.e. the verge, was objectively dangerous, which is the touchstone of liability under section 41,because of  the grass. The condition of the grass in this case did not in itself make the passage along the highway dangerous to ordinary traffic. Hence no question of a duty to cut the grass as part of the duty imposed on the highway authority in this case under section 41 could arise.  The dangerous condition of this highway for the purposes of establishing a breach of the section 41 duty to maintain, lay solely in the presence in the ground of the uncovered stopcock.

23. I was referred again in this context to the decision of the House of Lords in Goodes. That decision established that there was no duty upon a local authority as highway authority under section 41 to prevent the formation of ice or to remove the accumulation of snow on the road, no matter how transiently dangerous this caused the surface to be, because the presence of such ice or snow did not render the fabric of the highway out of repair and it was to the maintenance of the fabric of the highway that the duty was directed. I do not go as far as to rule that there can never be a case where the presence of grass growing on the highway will make the fabric of the highway out of repair so as to render the highway objectively dangerous for the purposes of establishing a breach of duty under section 41. There may be circumstances and facts yet to be realised which will bring this about. I see the force of the submission that growing grass is no mere transient covering and is arguably part of the fabric of the highway since it grows out of it. However, for present purposes I do not need to resolve this issue. On the facts of this case the growing grass did not itself render the fabric of the verge “out of repair” or in a dangerous condition and there was no question of a section 41 duty to cut the grass on this verge,  imposed on this  local authority . In so far as the judge found this to be the case, which as I have said does not appear to be the case, he was in my judgment wrong to do so.

The statutory defence under section 58 of the Highways Act 1980.

24. Breach of the statutory duty under section 41 having been established, the only remaining question for the judge was whether the appellant highway authority had made out its statutory defence under section 58 of the Act. Section 58 provides as follows in its material parts:

"(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous for traffic.

"(2) For the purposes of a Defence under subsection (1) above, the court shall in particular have regard to the following matters:‑‑ 

(a) the character of the highway, and the traffic which was reasonably to be expected to use it; 

(b) the standard of maintenance appropriate for a highway of that character and used by such traffic; 

(c) the state of repair in which a reasonable person would have expected to find the highway; 

(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway; 

(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed."

25. It is common place that such a defence is often established upon proof by a highway authority that it has a system of inspection and repair whereby defects are recorded and those that require repair are subsequently repaired. See the current edition of Charlesworth on Negligence at paragraph 9-13..

26. In this case the originally pleaded defence of the appellant under section 58 relied upon the asserted fact that the defect in question, i.e the missing cover had arisen since the date of the last inspection of December 2002. The Judge subsequently at the very end of the evidence in the course of submissions allowed an application on behalf of the appellant to substitute a general reliance upon section 58 on the premise that the defect did exist at that date.

27. The amendment reads as follows:

"The first defendant, in any event, relies on section 58 of the Highways Act to afford it a full Defence to the claim.  It avers that it has taken such care as in all the circumstances was reasonably required to ensure Mygrove Road was not dangerous to traffic.  It relies upon the following:  

(a)	Mygrove Road, where the accident is alleged to have happened was inspected six‑monthly.  

(b)	In the 12 months prior to the alleged accident Mygrove Road was inspected on 22/7/02 and 2/12/02.  

(c)	Given the character of the highway concerned, the first defendant contends a system of 6‑monthly inspections are reasonable.  

“The first defendant contends it could not reasonably do more than carry out a visual inspection of the grass verges alongside Mygrove Road.  

“The first defendant has no knowledge of any other similar accidents and has not received any prior complaints about the defect."

28. The Judge found that the appellant had not made out its section 58 defence. The principal ground of appeal against that finding is that on the evidence before the court relating to the appellant’s system of inspection and repair, it was perverse of the judge to find other than that the appellant had done all that could reasonably be required of it in the circumstances  to secure that the verge was not dangerous to traffic ;and that the judge by virtue of his ruling has required that  an additional burden  or duty be imposed on local authority highway authorities  which went beyond the boundaries of reasonableness. It is said the judge did not make clear the precise parameters of this duty but it in effect amounts to the wholly unreasonable burden/duty of either cutting all grass verges to keep them short  at all times so that the public can see any hidden dangers, or to cut them short just before inspections are carried out.

29. Before I turn to the reasoning of the judge I should record that which is emphasised on behalf of the appellant that the judge accepted:

(i)	that the appellant operated a biannual inspection of the highway in the area and this was carried out visually by the appellant’s highway inspector, Mr Gray;

(ii)	 that the last inspections before the accident were on the 2nd 	December 2002 and 22 July 2002.

(iii) 	that Mr Gray had not seen the missing stopcock cover because 	it was concealed to him by the grass but no criticism was made 	by the judge of the way the appellant carried out its highway 	inspections either generally, or on the day in question, nor of 	their frequency. There was no finding by the Judge that Mr 	Gray should have noticed the missing cover when he inspection  	on either occasion. There is no suggestion in the judge’s 	findings that when the appellant through its other department 	was cutting the grass by machine that the machinist should 	have noticed the defect .It will be recalled that on the judge’s 	findings the stopcock cover had been missing as long before as 	March/April 2002.

The judge’s section 58 reasoning

30.The reasoning of the judge leading him to reject the section 58 defence is set out in paragraph 27 of his judgment,(he having set out the statutory provision in full in the previous paragraph,) as follows:

"I find that the First Defendant did not take such care as in all the circumstances was reasonably required to secure that the grass verge was not dangerous for pedestrian traffic.  The First Defendant was, as it admits, the highway authority responsible for the grass covered patch of land in question alongside the Claimant's property.  It had the responsibility to maintain it.  There was a basic policy to mow grassy areas according to the First Defendant's highway inspector, Mr Gray, but it was not adhered to on grounds of resources.

The failure to mow the grass and the consequent overgrown state of the grass concealed the uncovered stopcock from the Claimant and from the First Defendant's own highways inspector, Mr Gray.  The grassy verge was in a residential area.  It was reasonable to expect that pedestrians might walk on it and for that matter that a neighbouring owner might mow the grassy verge if the Council did not do it because the overgrown grass was unsightly.  The grass should have been mowed in accordance with the First Defendant's basic policy but which they did not adhere to on grounds of resources or lack of them.  A reasonable person would have expected to find the grass verge mown and certainly not in the overgrown state that it was in.  The First Defendant could reasonably have been expected to know that the grass verge with its uncovered stopcock was likely to cause danger to members of the public who used the grassy verge.  The First Defendant and its highways inspector, Mr Gray, would have detected the uncovered stopcock had the grass been mown, and it could have been dealt with.  According to Mr Gray the First Defendant's guidance notes for inspection asked them to note utility covers.  Further, on Mr Gray's evidence had the grass been mown he would have seen the uncovered stopcock and reported it, so it could have been dealt with.  I therefore find that the First Defendant is not entitled to rely on the statutory defence under section 58 of the Highways Act 1980.  It did not take such care as in all the circumstances was reasonably required to secure that the grass verge was not dangerous to pedestrians or those otherwise using the verge.”  

31. Counsel on behalf of the respondent second defendant submits that the judge has in this passage gone through the various factors set out in (a) to (d) of section 58(2) by reference to his findings of fact and although this court might have come to a different view on the establishment of the defence, the Judge’s conclusion was not one with which this court should interfere, he having made no error of law.

32. I have no doubt however the judge approached the question of the section 58 defence from the wrong starting point .Fundamentally he starts from the  premise that the appellant local authority as highway authority had assumed the responsibility to mow the grass through its “basic policy” and that it was the failure of the appellant as highway authority to adhere to that policy which had concealed the uncovered stopcock from  the appellant’s inspector, and it was accordingly through the appellants own actions and inactions that it had been prevented from properly dealing with the defect, and this therefore disentitled the appellant from relying upon the statutory defence. This approach of the Judge is foreshadowed in his observations during submissions recorded in the transcript before me at page 163B onwards.

33. In my judgment this whole premise of the Judge was wrong. He still I have no doubt  had in mind his earlier finding that through an assumption of responsibility the appellant had acquired a duty to cut the grass but as I have already held the appellant as highway authority  had done no such thing. Moreover in his saying “a reasonable person would have expected to find the grass verge mown and certainly not in the overgrown state it was in” the Judge is not in fact applying his mind to the feature of this particular highway which had rendered it out of repair and dangerous for the purposes of the section 41 duty, which is what he should have been doing when applying the factors set out in section 58 (2). He is wrongly concentrating upon the failure of the appellant to mow the verge as if that was its material failure under section 41, which it was not, and as if it was the overgrown state of the verge which had rendered it dangerous so as to give rise to the breach of the duty to maintain, which it had not. 

34. I agree with the submission of the appellant that having started from a wrong premise, the Judge has ended up in ruling through his section 58 reasoning that local authorities have a discrete duty to mow grass verges in the context of their obligations as a highway authority but without particularising that duty. It is difficult to discern from the reasoning what precisely local authorities are being called upon to do. If it is an obligation to keep the grass short at all times so that the public can see any hidden dangers, this would appear to be an unreasonable if not impossible burden to impose. If it is an obligation to cut the verges short just before inspections are carried out, this again has obvious practical difficulties, and was not a matter ever investigated at trial. Even if there were scope for imposing some sort of duty to cut grass, it could not be put in the wide way which the Judge appears to have adopted in this case.

35. The Judge in applying the provisions of section 58 to the facts of this particular case should have been concentrating not upon the overgrown condition of the grass and what was a wrong finding that the appellant as highway authority had in some way accepted a duty to mow the grass, but upon the particular defect which in this case had rendered the highway dangerous, namely the presence in the ground of the hole formed by the missing stopcock cover, and asking himself whether the appellant as highway authority had taken such care as was reasonably required to secure that that part of the highway was in fact not dangerous in this particular way. This would require his concentrating upon the appellant’s system for inspection and repair and the adequacy of it both in concept and in the way it was in fact carried out. When asking himself the question under 58 (2) (d) whether the appellant highway authority could reasonably have expected to know that the condition of the part of the highway to which the action relates, was likely to cause danger to users of the highway, the issue was whether as highway authority, without any duty as such to mow the grass, the appellant could have been expected to know prior to the accident of the presence of the uncovered stopcock. When considering the character of the highway and the traffic which was reasonably to be expected to use it, the evidence was that this verge was not one which was frequently used for passage by anyone, it being that part of the footway nearest the fencing of the properties.

36. The Judge if he had approached his consideration of the section 58 defence in this way might well have questioned whether on the facts of this case the system of inspection instituted by the appellant and as it was carried out on that day by Mr Gray, its inspector, was in fact reasonable. As I understand the Judge’s findings, he in fact made no criticism in this regard. It might for example have been argued that if the grass was as long as it was it was not reasonable for Mr Gray not to actually gone onto the verge to carry out his inspection. His evidence was that as he was walking down the road he would be visually looking for defects the footways and verges as well, but he did not specifically go onto the verge to check it, and would not fine tooth comb it. The evidence moreover was that it was part of the appellant’s guidance to inspectors that they note utility covers, and that although Mr Gray did not know the precise location of stopcocks, and had never asked for that information, he assumed such information was available. However there is no finding by the court below of whether the appellant through Mr Gray or otherwise had any actual or constructive knowledge of where stopcocks were.

37. However as I understand his judgment, the Judge made no criticism of how Mr Gray carried out his job on the day of his inspections. Indeed counsel for the claimant in his submissions to the judge made only limited criticisms of the way Mr Gray’s inspection. At one stage (188) he expressly said that he would not go as far as to say he should have gone over to a grassy area where the grass was long specifically to look for stopcock covers, or (190) that the inspector should have an obligation in this situation to ascertain the precise location of any stopcocks in the area and then go over and specifically look at them. The highest counsel put it was that in that situation, where there was something obstructing the ability to carry out an inspection, the inspector should have noted the obstruction down and passed it on to the appropriate department, following which it could be dealt with in due course, and
“then perhaps a further inspection be undertaken once the impediment has been removed.”

38. If the Judge had gone down the road suggested by claimant’s counsel of concentrating on the method of operation of the inspection carried out by Mr Gray,  there might have been a very different judgment on appeal to this court, in that the judgment would have been considering more precisely what reasonably could have been expected of Mr Gray when he inspected Mygrove Road in December2002 and found the grass to be as long as the Judge found it was. But as I have already indicated the Judge chose to make no criticism of the system of inspection and repair carried out by this appellant.

39. For the reasons I have given I have no doubt the Judge’s reasoning under section 58 is fatally flawed: it is based on the premise that there was in effect a duty on this appellant local authority in its capacity as highway authority to cut the grass on grass verges which may contain stopccks or similar potential hazards. On the facts of this case there was in my judgment no such duty.

40. It follows that the reasoning of the Judge in relation to the section 58 defence cannot be upheld.

41. I have turned my mind to whether or not I as the appeal Judge should nonetheless conclude that even on approaching the matter in the way I consider the Judge should have done, the section 58 defence has still  not been made out. I do not think on the material before me it would be proper for me so to do.

42. Issues of foreseeability are raised here. I have already described the character of the highway. The Judge did not criticise Mr Gray on the facts of this case for not carrying out his inspection on the verge itself, and for not scouring through the blades in order to look for defects. This stopcock was not of course owned by the appellant and I accept the submission made by counsel on behalf of the appellant that on the evidence before the court below it was not reasonably foreseeable to the appellant that this particular verge would contain a defective stopcock, or at the very least it was not established that this was reasonably foreseeable by it

43. Taking matters in the round, in particular the evidence which was before the court below of the appellant’s system of inspection and repair and the lack of any finding critical of it, I have decided that the only sensible conclusion I can reach is that the section 58 defence should have been found established by the Judge. In a different case on different findings of fact, another court might well find that the equivalent of Mr Gray had not done enough in this case and/or the overall system instituted by the highway authority for dealing with inspections of the highway when faced with obstructions on the highway, was inadequate. The example given by counsel for the claimant in the course of submissions below was of a different part of the highway with a greater frequency of passage which when the inspector arrives has an apparent defect partly obscured by a motor car. There may well be an argument in that situation that a system which did nothing to take steps either to remove the obstruction if practicable, or to return at a later date, would not be sufficient to establish a defence under section 58.

44. In this case however the verge in question was not used by any major traffic. The inspector on the judge’s findings had no reason to think it was obscuring any particular defect, and the judge has not felt able to criticise him for the nature of the inspection he did carry out.

45. In these circumstances I allow this appeal and substitute a judgment dismissing the claim against the appellant.