Neutral Citation Number: [2011] EWHC 1590 (QB)
Case No:  QB/2010/0721
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  22 June 2011 

Before :

THE HONOURABLE MR JUSTICE EADY
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Between :

	KENT COUNTY COUNCIL
	Appellant/
Defendant	
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	JOSIE LAWRENCE	Respondent/
Claimant	

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James Hawkins (instructed by Berrymans Lace Mawer LLP) for the Appellant
Anthony Johnson (instructed by The Compensation Clinic) for the Respondent

Hearing date: 15 June 2011
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Judgment

Mr Justice Eady : 

1.	On 15 June 2011 I heard an appeal, for which I gave permission at the outset, by the Kent County Council against an order of His Honour Judge Caddick made on 4 November 2010 at the Maidstone County Court.  This followed the fast-track trial of the claim for damages brought by Ms Josie Lawrence for personal injury and consequential losses following a tripping accident on 7 November 2006.  Judgment was given for the Claimant in the agreed sum of £5,000, with costs to be assessed and the learned Judge refused permission to appeal.  
2.	The claim was brought in respect of an alleged breach of s.41 of the Highways Act 1980, Ms Lawrence having tripped over a manhole cover which protruded to some extent above the pavement in Newbury Avenue, Maidstone, where the Defendant is the relevant highway authority.
3.	The Judge held that the extent of the protrusion was at least 15mm.  He was somewhat hampered in making this assessment because of the limited evidence available.  The Defendant’s highways inspector, Mr Cunningham, attended a site visit with Ms Lawrence on 31 January 2007, but he had not brought a measuring instrument.  He placed his mobile phone, however, along the edge of the manhole cover to provide some means of gauging the height.  On another occasion a measure was placed against the phone itself, which the Judge thought showed that it was approximately 17-18mm in width.  Since the protrusion of the manhole cover did not extend to the full width of the mobile, it was on this basis that the Judge concluded that it was at least 15mm.  He thought it “curious” that the Defendant had not provided its inspector with a proper gauge or other means of measurement for the site visit.  Not only that, but he was not sent back immediately after the visit to rectify the omission.  The Defendant council then went ahead and repaired what the Judge described as “the offending part of the pavement”, knowing that a claim and court hearing were likely, but thereby preventing any accurate measurement being taken.
4.	The learned Judge was taken to the principal modern authorities on “tripping” cases, as was I for the purposes of the appeal.  Both counsel have relied on citations from the judgments of the Court of Appeal in Mills v Barnsley Metropolitan Borough Council [1992] PIQR P 291 and James v Preseli Pembrokeshire District Council [1993] PIQR P 144.  The fundamental question is whether the relevant part of the highway (in this case the metal surround of the manhole cover) was such that it could be characterised as sufficiently “dangerous” to amount to a breach of s.41.  It is said that not only must a claimant establish that it was reasonably foreseeable that harm would occur, but that the court also needs to carry out a balance between private and public interests, since the expenditure of public funds on highways has to be prioritised, and the threshold should not be set unrealistically high.  I find some difficulty with this separation into stages since, if the foreseeable harm is other than de minimis, one might conclude that danger could reasonably have been anticipated from continued use of the highway by the public.  What seems to be required, however, in addition is an assessment by the court, in the light of the particular facts, of whether it would be reasonable to leave the risk without carrying out such work as would be necessary to eliminate it.
5.	My attention was drawn to a number of passages in the leading cases as to the principles which need to be applied, in particular from the judgment of Steyn LJ in Mills:
“For my part I find it a sterile exercise to make a comparison between the facts of reported decisions in tripping cases and the facts of the present case.  The principles laid down are clear.  In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that:
	  (a)	the highway was in such a condition that it was          		dangerous to traffic or pedestrians in the sense that, in 		the ordinary course of human affairs, danger may      		reasonably have been anticipated from its continued   		use by the public;
	  (b)	the dangerous condition was created by the failure to 		maintain or repair the highway;  and
	  (c)	the injury or damage resulted from such a failure.
Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority’s reliance on the special defence under section 58(1) of the 1980 Act, namely, that the authority had taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic.  On this aspect the burden rests on the highway authority.”
6.	A little later he made the following observations:
“Like the judge, I do not consider that it would be right to say that a depression of less than one inch will never be dangerous but one above will always be dangerous.  Such mechanical jurisprudence is not to be encouraged.  All that one can say is that the test of dangerousness is one of reasonable foresight of harm to users of the highway, and that each case will turn on its own facts.  Here the photographs are particularly helpful.  In my judgment, the photographs reveal a wholly unremarkable scene.  Indeed, it could be said that the layout of the slabs and the paving bricks appears to be excellent, and that the missing corner of the brick is less significant than the irregularities and depressions which are a feature of streets in towns and cities up and down the country.  In the same way as the public must expect minor obstructions on roads, such as cobblestones, cats eyes and pedestrian crossing studs, and so forth, the public must expect minor depressions.  Not surprisingly, there was no evidence of any other tripping accident at this particular place although thousands of pedestrians probably passed along that part of the pavement while the corner of the brick was missing.  Nor is there any evidence of any complaint before or after the accident about that part of the pavement. … I regard the missing corner of the paving brick as a minor defect.  The fact that Mrs Mills fell must either have been caused by her inattention while passing over an uneven surface or by misfortune and for present purposes it does not matter what precisely the cause is.
Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life.  It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed.  This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest.  The judge’s ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was unfortunately injured in this case.  The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous.  In my judgment the plaintiff’s claim fails on this first point.”
7.	The other member of the court was Dillon LJ, who made the well known comment:
“The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all.  The question is whether a reasonable person would regard it as presenting a real source of danger.  Obviously, in theory any irregularity, any hollow or any protrusion may cause danger, but that is not the standard that is required.”
8.	In the James case, Lloyd LJ, having cited at length from the judgment of Steyn LJ in Mills, added the following comment of his own:
“In one sense, it is reasonably foreseeable that any defect in the highway, however slight, may cause an injury.  But that is not the test of what is meant by ‘dangerous’ in this context.  It must be the sort of danger which an authority may reasonably be expected to guard against.  There must, as Steyn LJ says, be a reasonable balance between private and public interest in these matters.  In the present case, I am driven to the conclusion that the judge ignored that balance.  He has imposed a standard which is much too high and has thus reached a conclusion which was plainly wrong on the facts.”
9.	In the same case, Ralph Gibson LJ added that:
“ … it has been established by the decisions of this court that the standard of care imposed by the law upon highway authorities is not to remove or repair all and any defects arising from failure to maintain, such as differences in level or gaps between paving stones, which might foreseeably cause a person using the carriageway or footpath to fall and suffer injury, but only those which are properly to be characterised as causing danger to pedestrians.  There is, I think, an apparent element of circularity in some of the formulations of duty or breach of duty which have been advanced.  Thus the test of dangerousness is one of reasonable foresight of harm to users of the highway.
But in drawing the inference of dangerousness the court must not set too high a standard.  Any defect, if its uncorrected presence is to impose a liability, must therefore be such that failure to repair shows a breach of duty.  The escape from any apparent circularity was stated, or re-stated, I think, by Steyn LJ in Mills … where, in holding that no breach of duty had been established, he pointed to the fact that the risk of injury from the demonstrated defect was of a low order and that the fall suffered by the claimant in that case must have been caused by inattention when passing over an uneven surface or by misfortune.”
10.	These statements of principle are clearly fundamental to the present appeal. I was reminded also of the strict tests to be applied in the modern appellate regime, whereby an appeal from the county court proceeds by way of review in the High Court, rather than re-hearing.  In particular, I was shown the words of Thomas LJ in Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748 at [16], albeit in the different context of a decision on abuse of process:
“The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms.  However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors;  it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him.”
In this context sometimes reference is made to the speech of Lord Fraser in G v G [1985] 1 WLR 647, where he stated that “ … the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible”.
11.	A number of criticisms were levelled at the judgment in this case.  It is said that the Judge in effect imposed too high a standard of duty and thus failed to heed the warnings in the Court of Appeal in the Mills and James cases.  If a protrusion of this height were to be categorised as dangerous, then the fear is that the burden imposed on highways authorities would be quite unrealistic.  Indeed, this was said by Mr Hawkins to reflect his client’s main reason for bringing this appeal.  On the other hand, Mr Johnson for the Claimant argues that the case does not have any such wide-ranging significance.  It is a decision of the county court and, moreover, the Judge was not purporting to lay down any principle of general application, but rather to apply established law to the particular facts before him.  
12.	Nevertheless, it is hardly surprising that highways inspectors, who have the day-to-day responsibility of discharging their employers’ statutory duties, adopt a rule of thumb sometimes in order to see whether there arises in any particular location a duty to repair.  Moreover, it would not be unreasonable, in fixing upon such a rule of thumb, to have regard to the most recent cases in which courts have either upheld liability or rejected a claim.  Mr Cunningham was criticised by the Judge for taking a “mechanistic” approach in adopting 20mm as his rule of thumb.  But, to be fair to inspectors in his position, it is difficult to see what practical alternative there is to operating some such rough and ready guide.  It is obviously not going to be of universal application.
13.	Secondly, it is said that the Judge applied the wrong test, in the sense that he did no more than decide that the protrusion gave rise to a risk of harm and/or was dangerous.  He did not, it is said, go on to carry out the balancing exercise or to apply the criterion of proportionality, which seems to be implicit in the judgments in the two Court of Appeal cases to which I have referred (although when those cases were decided, in 1992, lawyers were less inclined to use that terminology).
14.	It is not easy to work out exactly what is required of a judge in these circumstances.  In order to make a judgment as to whether some particular imperfection in the highway should reasonably be corrected or, alternatively, should reasonably be left untouched (notwithstanding some risk of harm), one would ideally need to know something about the available budget and the competing priorities.  In doing so, of course, one might seem to be encroaching upon the functions of those with direct responsibility for prioritisation.  Nevertheless, it is clear from the decisions cited above that a judgment on reasonableness has to be made by the court having regard, at least in general terms, to financial and other practical constraints.  The Defendant submits that the Judge failed to do this, despite having the relevant case law drawn to his attention.  It certainly appears that he made no express reference to any such exercise in the course of his judgment.
15.	Thirdly, it is claimed that the Judge took into account irrelevant factors to such an extent that his decision was flawed and that an appellate tribunal would thus be free to make its own assessment.  Various examples were given of matters which were taken into account and which are said to have been irrelevant as a matter of law.
16.	The fourth ground of appeal is that the Judge misconstrued the inspector’s evidence in certain respects.
17.	I do not believe it is appropriate in this case to say of the Judge’s conclusion that he must have gone beyond the reasonable ambit within which disagreement is possible.  Even if I would not necessarily have come to the same conclusion myself, that would not in itself be a basis on which to allow the appeal.  I do not believe that I could hold that the decision he came to on this protrusion was one which no reasonable person could reach.  The question becomes, therefore, whether in some respect he erred in arriving at that decision, so as to permit an appellate tribunal to form a separate judgment of its own.
18.	Although Mr Johnson submitted otherwise, this is not one of those cases where the judge’s decision depends on his conclusions as to contested facts.  The material facts are largely beyond dispute.  The Claimant tripped over a manhole cover, which can be seen in the various photographs, and I am content to accept the Judge’s estimate that the extent of the protrusion was at least 15mm.  What matter are the conclusions which flow from that regarding the Defendant’s statutory duty and whether it was breached.  Accordingly, says Mr Hawkins, the appellate court is in as good a position to decide such questions as the judge at first instance.  The important issue is whether there are any grounds on which I should reach the stage of making my own independent decision.
19.	The Judge rehearsed the appropriate test for him to apply, relying upon the relevant authorities.  I was reminded in this context of the words of Ralph Gibson LJ in Reid v British Telecommunications Plc, 26 June 1987, unreported, where he referred to the authorities having been cited to the judge below and added “ … I find it quite impossible to think that this learned judge could have supposed for one moment that the duty of care of these defendants was in any sense equal to that of an insurer who must remove any possible cause of tripping from the highway”.  It was submitted that I should not assume, either, that Judge Caddick, having had the cases cited to him, failed to understand the test he was to apply – even though he may not have spelt out all relevant parts of it.  In particular, in the present context, I should not assume that Judge Caddick was unaware of, or chose to ignore, the remarks made in the Court of Appeal about the need to balance private and public factors.
20.	On the other hand, the Judge referred more than once to the issue of whether there was “danger” and to the risk of pedestrians injuring themselves if matters were left as they were.  What is not apparent from the judgment is whether he asked himself, or answered, the different question of whether, notwithstanding the undoubted risk of injury from a protruding manhole cover, the Defendant was under a statutory duty to eliminate a risk of that particular type by expenditure from its obviously finite budget.  One has to pose, it seems to me, the question whether a risk of that kind is simply something which the local residents have to put up with.  That is plainly a matter of judgment (although not of discretion) and one has to acknowledge that there can never be one right answer.  Different judges might come to different conclusions.  There is nothing unusual about that.  That is always inherent in an assessment of “reasonableness”.  The question to which I must return is whether there is any justification for me to substitute my own judgment for that of Judge Caddick.
21.	My conclusion on the first and second grounds of appeal is that he did not misunderstand the nature of the statutory duty or apply the wrong test.  Furthermore, he arrived, in the light of the questions he had set himself, at an answer which, viewed in isolation, fell within the ambit of reasonable possible conclusions.
22.	The next question is whether, as is contended in ground three, the Judge took into account irrelevant considerations in coming to his conclusion.  It seems to me from the transcript of the judgment that he did.  His reasoning was to that extent, therefore, flawed.  Having asked the right questions, it was for him as the trial judge to answer them according to his own judgment.  It was not appropriate to ask any of the witnesses what they thought, as opposed to what they saw or did.  That is not their function and, in any event, they were not necessarily applying the appropriate tests as laid down in the authorities.  Despite this, the Judge referred to the views of Mrs Rose, the Claimant’s daughter.  He described her as “a perfectly sensible woman”.  No doubt she was.  But she formed her view as to the danger without any reference to the balancing exercise required or to the issue of proportionality which the cases clearly require to be addressed.
23.	As Mr Johnson points out, the Judge went on to say, both in his judgment and in his reasons for refusing permission to appeal, that he had not attached great weight to the views of Mrs Rose or the Claimant.  Either, however, their views are irrelevant or they are not.  If they are irrelevant, as I would hold them to be, then it was inappropriate to attach any weight to them.
24.	Closely related to ground three is ground four, which specifically addresses the Judge’s approach to the evidence of the inspector, Mr Cunningham.  His evidence during the course of the trial was that he would have left the hazard unrepaired, had it been drawn to his attention prior to the accident, as not meeting the authority’s “intervention criteria”.  The Judge effectively rejected this evidence and preferred to go by his contemporaneous work instruction, which was that the manhole cover should be “made safe” (i.e. that the risk should be eliminated, I assume).  The Judge regarded this as some kind of admission made on behalf of the Defendant to the effect that the protrusion had indeed been dangerous.  Indeed, Mr Johnson went so far as to submit that I could not go behind the Judge’s finding of fact that Mr Cunningham’s written instruction meant that it was unsafe.  This was not, in my view, a legitimate approach.  
25.	First, the Judge should not have taken into account other people’s views of what was “dangerous” and, therefore, by implication of what was or was not a breach of statutory duty.  He had to carry out the balancing exercise himself. 
26.	Secondly, there is clear authority that the mere fact that work has been carried out does not mean that there was a duty to carry it out.  It is a non sequitur.  The Judge acknowledged that this was so, in paragraph 5 of his judgment, but went on to describe the repair as “simply part of the factual matrix from which I draw my conclusion”.  He added, at paragraph 16:  “It seems to me unlikely that KCC, strapped for cash even in 2007 … would be doing work which they simply genuinely did not think needed to be done”.
27.	Thirdly, an instruction to “make safe” simply meant that the risk, such as it was, should be eliminated.  It begged the question completely of whether the risk was such as to be categorised, for statutory purposes, as a danger.
28.	Fourthly, Mr Johnson asked the rhetorical question “What better evidence could there be that the protrusion was dangerous than the contemporaneous record of a highways inspector?”  The short answer to that question is that the evidence has to be admissible.  
29.	Attention was drawn also to what is said to have been an inconsistency in the Judge’s approach to Mr Cunningham’s evidence.  In the context of the s.58 defence (which otherwise does not fall to be considered on this appeal), Mr Cunningham’s evidence was to the effect that in his view the cover was not dangerous.  Yet the Judge apparently accepted it (as his genuine view).  This may seem odd, although I am not sure that I see any inconsistency.  But the key point is that the inspector’s opinion is not relevant to this issue.  Otherwise, one would be getting to the point where a highway authority’s legal obligations could be defined not on the basis of judicial determination, but according to the opinion of one of its own employees.
30.	Having upheld the third ground of appeal, I must now come to my own conclusion on the same material that was before the Judge.  Mr Johnson submitted that if I were to reach that stage I should come to the same conclusion, because one can see from the photographs that the protrusion obviously did present an unacceptable danger to passers by.  The exercise involves making a personal judgment, as best one can, in the light of everyday experience.  It is clearly not a precise art.  I return, however, to the Court of Appeal decisions for such guidance as I can find on the standard to be applied.
31.	It emerges from the judgment of Steyn LJ that one can take into account, if it be the fact, that no evidence has emerged of any other tripping accident having occurred in the same spot if it is a well used thoroughfare.  At paragraph 6 of his judgment, it was found by the Judge that Newbury Avenue was “in the middle of a densely populated residential area”.  There is no evidence of anyone else having tripped at this spot.
32.	Looking at the photographs, I have to say as a matter of personal impression that the manhole cover appears unremarkable.  Walking down the Strand, or indeed any other urban pathway, one comes across potential tripping hazards all the time.  Of course, I accept that these present correspondingly increased risks to the elderly, the infirm or young children.  But I bear in mind the words of Dillon LJ from the Mills case, cited above at [7].  I am afraid I cannot conclude that this protrusion was such that “a reasonable person would regard it as presenting a real source of danger”.  Conducting a balance between public and private interests, I must recognise that highways authorities simply cannot achieve perfection and provide over the thousands of miles of pavement for which they are responsible a surface “which is entirely free from all irregularities or changes in level at all”.
33.	Naturally, like Judge Caddick, I feel considerable sympathy towards the Claimant and the unpleasant injury she incurred.  I regret to say, however, that I would conclude, as did Steyn LJ in the Mills case, for example, that the risk of injury from the demonstrated defect was of a low order and that the fall must have been caused by inattention or misfortune.
34.	The Defendant’s appeal must therefore be allowed.  I hope, however, that the outcome will not impact too harshly on the Claimant, especially in view of the fact that the Defendant sought to bring the appeal to achieve a wider policy objective of its own.