This recent High Court decision provides a useful indication of the quality of evidence claimants will need to provide if they are to successfully claim that a defect in the highway poses a danger.
The Claimant was cycling with her partner around a roundabout when she hit a pothole and fell off her bike, sustaining a fracture to her right leg.
The Claimant issued proceedings against Kirklees Borough Council alleging the pothole was dangerous and the Council had breached their duty to maintain the highway under s.41 of the Highways Act 1980 (HiA 1980). The Council's defence was that the Claimant had slipped off her bicycle, and that the pothole was not dangerous in any event.
The claim was dismissed by HHJ Davey QC on 15 August 2018 after a two day hearing. He found that although the Claimant had indeed hit a pothole, fallen off her bike and sustained injury, "there is in my judgement simply not enough reliable evidence of the dimensions or conditions of the pothole for me to say it is more likely than not that it presented a real source of danger in the sense identified in Mills v Barnsley Metropolitan Borough Council."
Two sets of photographs were taken to show the dimensions of the pothole. The first set was taken by the Claimant's partner a couple of weeks after the accident. The photographs were taken after dark when traffic was quieter. He was unable to produce measurements of the pothole, but estimated that the depth of the pothole was at least 45mm.
The second set of photographs were taken by one of the Council's employees, who had placed a tape measure over the pothole when photographing it. The tape measure ran from 1 to 10 inches and was placed across the width of the pothole. HHJ Davey QC described these photographs as "almost entirely useless" and held it was impossible to determine the width of the pothole from the photographs.
The Claimant appealed on the ground that HHJ Davey QC had been mistaken to conclude that he could not decide the length and width of the pothole. The Claimant argued that the photographs with the tape measure over the pothole would have allowed these dimensions to be determined.
It was agreed that the Claimant had to prove that:
- The highway was in such a condition that it was dangerous to traffic or pedestrians;
- The dangerous condition was created by the failure to maintain or repair the highway; and
- The injury or damage resulted from such a failure – i.e. that there was an 'actionable defect'.
Mr Justice Dingemans, who heard the appeal in the High Court, accepted that if HHJ Davey QC "had failed to make use of measurements which could be taken from photographs before the Court then the appeal would succeed because there would have been either a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence".
It was therefore necessary for Mr Justice Dingemans to decide if such a failure to understand or consider the photographic evidence had occurred.
Mr Justice Dingemans found that HHJ Davey QC had been correct to reach the conclusion he did as it was "not possible to determine what effect the road material underneath the tape measure, together with the road material in that part of the relevant area nearest to the roundabout, had on the measurements of the pothole (…)" using either of the photographs.
He also found that HHJ Davey QC had carefully considered all the relevant evidence and that he had placed considerable reliance on the evidence of the inspectors of the roundabout when reaching his decision. This was a question of fact which it was for the Judge at the first instance to determine, and which the appellate court should be cautious to overturn.
What can we learn?
- In claims alleging a breach of duty under s.41 of HiA 1980, the burden of proof is on the claimant to establish breach. It is not enough for claimants to provide photographic evidence of the relevant defect. The photographic evidence also needs to be clear and helpful to the court in evidencing the dimensions of the defect. If it is not, it is likely that the claim will be unsuccessful, particularly where there are clear inspection records that do not support the claim.
- Evidence showing that the defect constituted a danger will not be limited to photographic evidence alone, but also includes measurements, information about the location and the opinions of council employees carrying out inspections of the relevant stretch of road.
- The case is yet another example of appellate courts being reluctant to replace a finding of fact made during the first instance. Absent any failure to consider the relevant evidence or a misunderstanding of such evidence, the appellate court will usually not intervene.
- Interestingly, the pothole was repaired shortly after the incident, although this did not have a bearing on the case. A repair of a defect following an accident will not always be seen as evidence of a breach of duty on behalf of the highways authority.