Court of Appeal clarifies the test for dangerousness in respect of defects on little-used highways
Melvyn Griffiths v Gwynedd County Council  EWCA Civ 1440
Tim Horlock QC and Richard Whitehall have successfully defeated an appeal in the Court of Appeal in a case decided under the Highways Act 1980. Richard successfully represented the Defendant at the original trial.
This case concerned a remote highway, high in the mountains of North Wales. It was the smaller of two unclassified roads leading to the very small village of Croesor. The road was comprised of a thin layer of tarmac over a gravel track. It featured variable cambers and gradients and was commonly strewn with gravel and manure. At first instance, the trial judge, HHJ Seys-Llewellyn QC, held that the road was used sporadically at weekends by recreational cyclists.
The Claimant was cycling along the road in daylight in May 2009. As he rounded a bend and was travelling downhill, he encountered some debris in the road which he attempted to avoid by steering to the left hand edge of the road. Here he came upon a defect in the carriageway which caused him to be thrown over his handlebars. The defect comprised a large chunk of tarmac which had broken away from the edge of the road. He sued the local authority, Gwynedd County Council, for breach of s. 41 of the Highways Act 1980.
HHJ Seys-Llewellyn QC held that the defect was not dangerous so as to amount to a breach of s. 41. The factors considered by the judge to lead to that conclusion included that the defect was visible for some 21 metres on approach, that the reasonable man would not expect a cyclist to be using the extreme left hand edge of the carriageway and that defects of this nature were commonplace in rural locations such as this.
The Claimant challenged the decision on 3 main grounds:
(a) it was not unforeseeable that a cyclist would use all parts of the road in order to avoid debris etc. deposited on it;
(b) the depth of the defect was such that it fell within the Authority’s own “category 1”, which comprised dangerous defects requiring urgent repair;
(c) the fact that a defect may be commonplace in a certain location does not mean that it is not dangerous.
The Court of Appeal dismissed the appeal. The interesting elements of their judgment are as follows:
1. the nature of the road and its use are relevant factors in considering whether a defect on it is dangerous: “What may well be dangerous in a much frequented thoroughfare may not be so in a little frequented carriageway where the highway is reasonably passable without danger. A defect in the road in the Highlands, occasionally used by cyclists, may not be dangerous when it would be so if the road was in Central London and was habitually used for cycle races involving large numbers of competitors”.
2. the reasonable expectation of the public as to the standard of maintenance of the highway surface is a relevant consideration: “… in deciding whether there is in truth a danger, the court is entitled to take into account the reasonable expectations of the public as to the standard of maintenance of the highway surface. A defect on a remote rural mountain road, which was a wholly unremarkable and commonplace feature of such a location, could in the ordinary course of human affairs be regarded as something that was not properly classified as a danger to the persons who were likely to use it. The judge also took into account the burden which a finding of dangerousness would impose on the authority in the light of Mills v Barnsley Metropolitan Borough Council. That was a relevant, indeed an obligatory, consideration. A balancing exercise is required and that is what the judge did”.
3. the Highway Authority’s own intervention levels are not determinative of the dangerousness of a defect: The Court applied Smith LJ’s judgment in Esdale v Dover DC  EWCA Civ 409, which was an Occupiers' Liability Act 1957 case. Smith LJ held that “the test of whether, in all the circumstances, the council has taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the council sets itself as a matter of policy”. In any event, the Defendant’s intervention level in this case was a “rule of thumb”, and required a judgement by the highway inspector of all the circumstances relating to the particular defect.
It is likely that this decision will come as good news to local authorities with ever more constrained budgets for highway maintenance. It is a helpful reminder in particular that the test of dangerousness is informed to some extent by what the public at large would expect a highway authority to commit its scarce resources to repair.
The judgment can be found here: http://www.bailii.org/