Case No: B3/2010/1326 
Neutral Citation Number: [2011] EWCA Civ 207
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE HAWKESWORTH QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 18th January 2011

Before:

MASTER OF THE ROLLS
(LORD NEUBERGER OF ABBOTSBURY)
LORD JUSTICE WILSON 
and
LORD JUSTICE TOULSON
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Between:

	Wilkinson 	
Appellant	
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City of York Council	

Respondent	

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(DAR Transcript of 
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Mr Ian Pennock (instructed by Wilkin Chapman LLP) appeared on behalf of the Appellant.

Mr Patrick Limb QC (instructed by Messrs Berrymans Lace Mawer LLP) appeared on behalf of the Respondent.
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Judgment
Lord Justice Toulson:

1.	On Friday 26 May 2006, shortly before 1pm, the claimant, then aged 17, was cycling her bike past 24 Whitby Drive, York when the front wheel hit a pothole.  The road surface was wet and she came off.  She landed on her chin suffering fractures and other injuries, from which fortunately she has made a good recovery.  Soon after the accident solicitors acting for her notified the defendant highway authority of her intention to make a claim against them.  For reasons which it is unnecessary to explore, it took a long time before proceedings were issued.  The case came to trial on 11 September 2009 in the Leeds County Court before Deputy District Judge Vaughan.  It was a fast-track trial.  After hearing evidence and speeches the Deputy District Judge gave a very short judgment late in the afternoon.  He found for the claimant but held that there was 50 per cent contributory negligence.  He awarded general damages of £7250, special damages and costs. 

2.	The highway authority appealed. Its appeal was heard by HHJ Hawkesworth QC on 5 February 2010.  He allowed the appeal and dismissed the claim.  He held that the highway authority had a valid defence under section 58 of the Highway Act 1980.

3.	The claimant now appeals, with the leave of the single judge, from HHJ Hawkesworth's decision.  The highway authority's case on the appeal is that the county court judge should have held that there was no failure to maintain the highway under section 41, but, on the basis that there was such a failure, he was right to find in the authority's favour under section 58.  The highway authority has also advanced a separate argument on causation which was not canvassed before either of the courts below.

4.	At the trial evidence was given by the claimant and by two witnesses from the local authority's highway department.  The main defence witness, and the only one to whom reference has been made on the appeal, was Mr Sweetman, who was formerly the authority's principal engineer responsible for highways.  

5.	It was suggested to the claimant in cross-examination that her account of the accident was wrong, and that she did not hit a pothole but hit the kerb.  The suggestion was not pursued with great vigour because there was no evidence to support it.  The Deputy District Judge accepted that the accident happened in the way that she described, and there is no appeal against that finding.

6.	The last inspection of the road prior to the date of the accident was approximately ten months earlier.  It was inspected again after the accident.  The claimant, in her witness statement which she adopted as her evidence, described the pothole as being 30 centimetres or 12 inches across and 4 centimetres or one and half inches deep.  She took those figures from measurements which she carried out with her boyfriend after the accident, and she was not cross-examined about them.

7.	Under the scheme for highway maintenance adopted by the highway authority, Whitby Drive fell within a category of highways which were inspected once every 12 months.  The central question in the case was whether the fact that under this policy it had been inspected less than 12 months prior to the date of the accident afforded the highway authority a defence to the claim under section 58.  

8.	The law relating to the duties of highway authorities has been considered by the courts on a number of occasions in recent years.  The 1980 Act is a consolidation Act built upon centuries of highway law. The history and scope of the duty of highway authorities and their common law predecessors for the maintenance of highways was reviewed by Lord Denning MR in Haydon v Kent County Council [1978] QB 343 and by Lord Hoffmann in Goodes v East Sussex County Council [2001] 1 WLR 1356 and more shortly in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057.  Lord Denning's judgment in Haydon was a dissenting judgment but it was approved by the House of Lords in Goodes.  

9.	At common law, responsibility for repairing highways and keeping them in repair rested on the inhabitants at large, but the meaning of repair was confined to making good defects in the surface of the highway itself so as to make it reasonably passable without danger for ordinary traffic.  Ruts, potholes or bushes rooted in the highway might make a highway out of repair but not things which obstructed the surface without damaging it.  The responsibility was a public responsibility, which was enforceable by proceedings on indictment in the nature of a prosecution for public nuisance.  No action for damages would lie against the inhabitants at the suit of a person who had suffered an accident as a result of a highway being in a dangerous condition through lack of repair.  Over the course of time, statutes were passed which transferred responsibility for the maintenance of highways to statutory bodies, but for a long time statutory highway authorities were no more liable for accidents caused by the non-repair of highways than had been the inhabitants at large.

10.	Things changed in 1961 as a result of the enactment of the Highways (Miscellaneous Provisions) Act 1961.  This gave a cause of action for the first time to a person injured as a result of the failure of a highway authority to repair the highway.  It did so by section 1(1) of the Act which provided that the rule of law exempting inhabitants at large and any other persons as their successors from liability for non-repair of highways was thereby abrogated.  In its place Parliament introduced the reasonable care defence now contained in section 58 of the 1980 Act.  

11.	The common law duty owed by the inhabitants at large and, more latterly, their statutory successors for keeping the highway in repair has been replaced by what is now section 41 of the 1980 Act.  Within its limits it is an absolute duty, but civil liability for injury caused by its breach is limited by section 58.  

12.	Section 41 provides, so far as relevant: 
"(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway. 
(1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”  [That subsection was added by amendment in response to the decision of the House of Lords in Goodes]

13.	Section 58 provides:

“(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 the 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;

but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.”

14.	The transcript of the hearing before the Deputy District Judge shows that the rival arguments about the application of section 58 on the facts of the case were well and clearly presented.  The highway authority did not concede that the pothole was a foreseeable danger to road users, but this was not the point on which its defence concentrated.  It concentrated its arguments on section 58.  It relied upon its code, under which the road was one for which annual inspection was prescribed.  The case advanced by the claimant was that mere reliance on that code was insufficient to discharge the burden placed on the highway authority under section 58. 

15.	The claimant's counsel, Mr Pennock, who appeared for her on that hearing and has appeared before us today, referred to a national code of practice for the maintenance of highways.  It is not a document which carries the force of law, but it is a code produced or approved by a number of public authorities with responsibility for road safety including the Department of Transport, the County Surveyors’ Society and the Local Government Association.  It makes plain that it does not purport to be mandatory.  It provides a suggested framework for consideration by local highway authorities in deciding on their own scheme of maintenance.

16.	At paragraph R7.1 it makes the following recommendation under the heading “approval of variations”: 

"Any variations in policies and practice from that identified by this Code should be derived following a risk assessment, then approved, adopted and published by the authority. The approval and adoption process should involve the authority’s Executive and be explicit, transparent and inclusive.”

17.	The code recommends that for deciding what level of maintenance regime is appropriate highway authorities should have a “carriageway hierarchy”, and it itself puts forward a hierarchy as "a reference point from which to develop local hierarchies".  It states that “indicative traffic flows have not been included in the table” but that “Authorities should designate carriageway hierarchies, having regard to traffic flows but also on the basis of risk assessment and the functionality of the particular section of carriageway in the network”.

18.	The two categories in the national code hierarchy on which argument has concentrated are categories 4a and 4b.  Category 4a is entitled "link road”.  It is described generally as comprising:

"Roads linking between the Main and Secondary Distributor Network with frontage access and frequent junctions."

The code adds:

"In urban areas they are residential or industrial inter-connecting roads with 30 mph speed limits, random pedestrian movements and uncontrolled parking."

19.	Category 4b is entitled “local access road”.  It is generally described as “road serving limited numbers of properties carrying only access traffic”.  The code adds:

"In urban areas they are often residential loop roads or cul-de-sacs."

20.	For Category 4a roads the recommended inspection frequency is three months.  For Category 4b the recommended frequency is 12 months.  

21.	The scheme adopted by the defendant highway authority contains a helpful table of comparison between the inspections recommended in the national code and the inspection regime adopted by the authority.  The York scheme has three categories.  The first category is confined to the city centre and main suburban shopping areas.  The second category comprises principal roads and other main distributor roads. There is a subcategory for frontages of schools.  All other roads are described as level 3 roads for which the inspection frequency is annual.  So roads within category 4a of the national code, which under the national guidance would be inspected once every three months, under the York regime are inspected every twelve months.

22.	The argument put forward on behalf of the claimant was that nowhere in the York scheme was it explained why the highway authority was adopting this different regime for local roads.  It did not appear to be based on the sort of risk appraisal which the national code suggested should be carried out.  When Mr Sweetman was cross-examined on the point his evidence was as follows: 

"Q. What are the reasons why we have a deviation from the code of practice here, what is accepted as good practice and why?
A. It is a matter of both financial and manpower resources.
Q. Financial?
A And manpower resources.  When we prepared the Highway Inspection Repair Manual, we looked at the highway network in its entirety and what the inspectors could manage within that timescale.
Q.  For the amount you employ?
A For the amount we employ on there yes at that time, as we still employ the same number of inspectors now as we did then and also its the financial constraints, to do with budgets."

23.	Put simply, the claimant's argument before the District Judge and repeated in this court is that this was not good enough.  Section 58 affords a defence if the authority can show that it had taken such care as in all the circumstances was reasonably required to secure that the relevant part of the highway was not dangerous for traffic.  In other words, the question is an objective question: what sort of maintenance regime is reasonably required to make sure that the road is safe?  Given the recommendation by responsible bodies who are not likely to be particularly claimant minded, because they include local authorities and national government, that the inspection regime for such local roads should normally be three-monthly, the authority could not establish its section 58 defence by saying only that budgetary considerations had caused them to adopt a 12-month cycle. 

24.	Mr Sweetman also expressed the view that, although the highway authority did not in this respect follow the national code of practice, if the York scheme had followed the national code, Whitby Drive would probably have been classed as a 4b road; therefore it was irrelevant whether the local authority had shown a sufficiently good reason for departing from the national code.  

25.	His evidence that he would have classified the road as a class 4b road led to the following questions from the Deputy District Judge about the nature of the road and the volume of traffic which could reasonably be expected to be using it:

"Q. Are you personally familiar with Whitby Drive and Whitby Avenue?
A. Yes, yes.
Q. Because I have been told and we have seen in the papers that there is [a] school on Whitby Avenue, there is a medical centre and some commercial premises round where the claimant was employed as well as all the houses and medical centres are fairly busy places, I think.
A. They can be, yes.
Q. Everybody is going in and out all day, with their aches and pains, and I am assuming it is in an urban area with a large catchment area?
A. It is.
Q.  It is all relative of course of what is heavily trafficked but it’s not just local residents.  It is people from further afield who are going to be going there
A. I would assume so, sir, yes."

26.	The reference to heavy traffic was because Mr Sweetman had in his evidence described the road as being lightly trafficked.  After the judge had put his questions, Mr Pennock continued: 

"Q.  Category is 4 is, 4A first of all, all other local traffic routes basically apart from 4B which is those local access roads serving a limited number of properties
A. Yes
Q. That is essentially cul de sacs and dead ends isn’t it, serving a limited number of properties
A. Yes."

27.	The plan before the court shows that Whitby Drive and Whitby Avenue together form a square.  Whitby Drive bends at right angles and at each end joins with Whitby Avenue.  The claimant at the time of her accident was cycling to a hairdressing salon in Whitby Drive, where she worked.  In Whitby Avenue, not far from the junction with Whitby Drive there is a school. In a cul de sac, to which access is via Whitby Drive, there is a medical centre, to which the judge referred in his questions to Mr Sweetman.  We were told that there are also shops in Whitby Drive and some light industry in the vicinity.

28.	The judge in his brief judgment said as follows:

“6. The claimant contends for a breach of Section 41 of the Highways Act, in essence a failure to maintain and the defendant contends for an application of Section 58.1 that indeed there has been sufficient care in relation to the maintenance of the relevant highway.  

7. There is a code adopted by all local authorities to assist them in these matters. Put in general terms there is the hierarchy of road standard inspections and repairs that is contained in the bundle and has been referred to at length.  The defendant has what appears to be a commendable system of inspection and repair based on their amended version of the code.  The court has been helped by Mr Sweetman and Mr Watkins in relation to that.  
My finding is that, commendable as it was, the system was not sufficient in relation to Whitby Drive.  If there had been an inspection at three monthly or even six monthly intervals then the pothole of which the claimant complains would have been discovered and rectified well before the date of Miss Wilkinson's accident. Failure means that in the view of this court, the Section 58.1 defence must fail and the Section 41 claim must succeed."

29.	The Circuit Judge was highly critical of the Deputy District Judge for his failure to give fuller reasons.  It is certainly unfortunate that he did not give fuller reasons.  We recognise that cases in the fast track are intended to be just that and that it is not necessarily to be expected that the judge will give a judgment of the same length as he might give in cases which are not in the fast track.  Even so, it is important that the judgment, however briefly, should set out the central findings made by the judge and, in so far as they are contentious, indicate his reasons in summary for arriving at them.

30.	Arising from that general criticism are a number of more specific criticisms.  It is said that the Deputy District Judge conflated the issues under section 41 with the issues under section 58.  I am not persuaded that this is correct.  He had earlier in the course of argument made it clear that he understood very well the difference between them.  It is understandable that he concentrated upon section 58 in his judgment, having regard to the course which the argument had taken.  It seems to me that there is an implicit if not explicit finding that there had been a breach of section 41 in that the pothole was a defect.  Although he did not use these words, he must in my judgment have meant a defect which was a danger to traffic likely to use the road.  On the evidence, that conclusion is in my judgment unassailable.  Although the Circuit Judge was very critical of the Deputy District Judge's failure to make an explicit finding of a breach of section 41, it is noteworthy that he did not himself make an explicit finding on the point in his judgment, but proceeded to deal with the matter on the basis of section 58.

31.	I then turn to the section 58 defence which has been the main subject of argument on this appeal.  The criticism of the Deputy District Judge which the Circuit Judge upheld, and which has been repeated in this court by Mr Limb QC for the highway authority, is that the judge failed to give any adequate reason for rejecting the defence advanced under section 58.  However, it has to be borne in mind how the issue on section 58 had been presented to him.  On one side, the highway authority contended that a system of 12-monthly inspections was sufficient.  On the other side, the claimant contended that, having regard to the nature of the road, there ought to have been three-monthly inspections in accordance with the national code.  The judge accepted the claimant's case on that central dispute.  The next question is whether there was adequate material on which he could properly do so.  In my view there was. 

32.	I bear in mind that the national code is not a statutory document.  It is a document which provides guidance.  I also sympathise with the comment by the Circuit Judge that it may not be easy precisely to put Whitby Road within either of the forms of words used in the national code under categories 4a and 4b.  But the Deputy District Judge had asked questions which were pertinent to the likely usage on this road.  Because this was a fast-track case, and the damages were modest, the parties did not go to the lengths of discovering the number of patients who were registered at the health centre, how many visits by patients there would be per day, how many people would go to the hairdressing salon every day and so on, but on the evidence it was a road which served a wider population than the local residents.  In my judgment the Deputy District Judge was entitled to conclude that it was the sort of road for which annual inspection was inadequate, having regard to the guidance in the national code and the absence of any reason other than financial for departing from the national code.  I do not read his reference to “six-monthly” as indicating indecisiveness on the central issue.  Rather, he accepted the claimant’s case and observed that even a six monthly inspection might have made a difference.  

33.	The Circuit Judge considered that the Deputy District Judge fell into error in that he failed to give proper heed to the financial considerations which led the highway authority to adopt the programme which it did.  In his judgment the Circuit Judge said: 

"It seems to me that resources are always a factor, and it is a balance between what the ratepayers will bear and how the resources should be allocated, which is a matter for the elected members of the council.  A judge, it seems to me, should be slow to reject the evidence given by a responsible council official that resources did not permit a more frequent inspection than that which was given."

34.	In my judgment this was a wrong approach by the Circuit Judge to the defence provided by section 58.  If this were a judicial review application of a decision by a local authority which involved having to determine how local government resources should be allocated between different good causes, it would be a very different matter, but section 58 provides a defence where the authority has done that which was "reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic".

35.	That requires an objective judgment based on risk.  Elsewhere in the Act Parliament has included manpower resources as a matter to be taken into consideration where this has been thought appropriate.  Section 150, dealing with the power of the court to make orders in relation to the removal of obstruction from roads, expressly enjoins the court to have regard to such considerations, but they do not feature in section 58.  The various matters, of course not exhaustive, to which the court is required to have particular regard in section 58(2) are all objective matters going to the condition of the highway and what the authority may reasonably have been expected to know about it.  There is a good reason for this.  The obligation to maintain highways in a structural condition which makes them free from foreseeable danger to traffic using the road in the ordinary way is an unqualified obligation of highway authorities of long standing.  If Parliament had wanted to weaken that fundamental obligation, now contained in section 41, it would have done so.  Section 58 had a different purpose.  Section 58 was designed simply to afford a defence to a claim for damages brought against a highway authority which was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users, not an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe.  

36.	There remains the issue of causation, which has been advanced as an additional line of defence on this appeal.  Mr Limb submitted that the burden was on the claimant to show that the pothole had arisen prior to the latest date when the authority ought reasonably to have inspected the road.  There was no evidence as to when the pothole first developed.  Accordingly he submitted that there was a fatal gap in the claimant's evidence.  He based that submission on the following passage in the judgment of Steyn LJ in Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291:

"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)."

37.	Mr Limb argued that it follows from the second requirement that the claimant has to show not only that the accident resulted from a defect in the highway of a kind which was liable to cause an accident, but also that the defect resulted from a failure by the highway authority other than the mere non-repair of the highway.  In my judgment the argument is fallacious.  It has to be remembered that it is not every dangerous condition of a highway which results from a breach of the highway authority’s maintenance duty.  This was made clear by Lord Denning at page 357: 

"The duty to ‘maintain’ in the sense of repair and keep in repair is an absolute duty.  This was emphasised by Diplock LJ in Griffiths v Liverpool Corporation  [1967] 1 QB 374-389 where he said: 'It was an absolute duty to maintain, not merely a duty to take reasonable care to maintain...’  In this respect it is like the duty to fence under the Factory Act. If a machine is not securely fenced, the occupier of the factory is liable even though he has not been negligent at all.  So also if a highway is out of repair there is a failure to maintain, even though the highway authority has not been negligent at all. But this absolute duty is confined to a duty to repair and keep in repair. It was so stated by Diplock LJ himself later in Burnside v Emerson [1968] 1 WLR 149-1497 when he said: 'The duty of maintenance of a highway which was, by section 38.1 of the Highways Act 1959, removed from the inhabitants at large in the area and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of a neighbourhood at all the seasons of the year without danger caused by its physical condition'.”

Lord Denning continued: 

“Maintain does not, however, include the removal of obstructions, except when the obstruction damages the surface of the highway and makes it necessary to remove the obstruction so as to execute repairs."

38.	Subparagraph b) in the passage cited from the judgment of Steyn LJ reflects the need for the claimant to show that the danger was due to a failure to maintain in the absolute sense explained by Lord Denning, but no more than that.  Properly understood, it provides no foundation for the argument put forward by Mr Limb.  Mr Limb's argument amounts to saying that section 58  makes it now incumbent on a claimant in every case of this kind to prove that there was not merely a breach of the duty to maintain but a negligent breach of the duty to maintain.  That proposition was rejected by this court in Griffiths v Liverpool Corporation, which Lord Denning cited.  In that case, Diplock LJ said at 390-391:

"Sub section 2 [of section 1 of the Highways (Miscellaneous Provisions) Act 1961, which is now section 58 of the 1980 Act] does not in my opinion make proof of lack of reasonable care on the part of a highway authority a necessary element in the cause of action of a plaintiff who has been injured by danger on the highway.  What it does is to enable the highway authority to rely upon the fact that it has taken reasonable care as a defence -- the onus of establishing this resting upon it.  A convenient way of expressing the effect of the subsection is that it does not qualify the legal character of the duty imposed by subsection (1) but provides the highway authority with a statutory excuse for not performing it...
Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) is not available to it.  Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the incident.”

39.	For those reasons I would allow the appeal and restore the judgment of the Deputy District Judge.

Lord Justice Wilson:  
40.	I agree.

Lord Neuberger:  

41.	I also agree.  Accordingly the appeal is allowed and the order made by the Deputy District Judge is restored.

Order: Appeal allowed