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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Drape v Newcastle City Council [2002] EWCA Civ 786 (8 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/786.html Cite as: [2002] EWCA Civ 786

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2 Wednesday, 8th May 2002

Wednesday, 8th May 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from a decision of His Honour Judge Langan, QC, in the Newcastle-upon-Tyne County Court, given on 8th January this year. It was renewed after permission had been refused in a reasoned written judgement by Potter LJ.
2. I do not need to set out the facts in any detail, since they are well known to the only two parties to whom this case is likely to be of interest, that it is to say, the claimant and the defendant.
3. The criticism that Mr Foster, who appears on behalf of the City Council, makes is essentially, as he has put it very clearly, two-fold: firstly, His Honour Judge Langan imposed too high a standard of care on the part of Highway Authorities; and secondly, the matters to which he particularly made reference in the context of the surrounding circumstances have no logical connection with, and did not meet, the previous findings that he had made that there had been no previous complaint about this particular hazard, and that it had not appeared to be a danger to a series of highway inspectors who had inspected the location.
4. The judge made it clear in paragraphs 8 and 9 that he gave great weight to those considerations, but he then went on in paragraph 10 to direct himself -- and it is accepted correctly directed himself -- that he must look at the particular hazard in the context of all the surrounding circumstances.
5. There is, of course, no logical connection between what he said in paragraphs 8 and 9 and what he said in paragraph 10, because all the matters in those paragraphs were matters to which he properly gave weight in coming to his conclusion.
6. In looking at the surrounding circumstances, it was in my judgement open to him to find that this hazard, placed as it was, and despite the fact that it was not recognised as such by the highway inspectors, was a relevant hazard because it was in a busy shopping area; it was likely to be obscured; and it was in an area where particular care needs to be taken because pedestrians are, or may be, thrown slightly off balance. Those were all conclusions that were open to him.
7. So far as the standard is concerned, the judge sets out no general standard by which he approaches the case, nor could he. It is not possible in cases like this to produce some general statement from which the outcome is deduced. Rather, the judge has to look at the facts and apply his judgement to them.
8. This was, as the judge accepted, and as I accept, a finely balanced case. Other judges, as the judge appreciated, might have taken a different view, but that is not the issue. The question is whether the view that the judge took was so plainly wrong as to constitute an error of law, and in my judgement it is impossible to say that that is so.
9. It is not for this court, and certainly not at the permission stage, as it were, to rerun that enquiry, and much less to form its own view; but I would certainly say that, having seen the photographs, they do not demonstrate in any way that it was not open to the judge to take the view that he did. This was a straightforward decision on an issue of fact, very much one for the trial judge. I do not think that the City Council need fear that, as a result of this judgement, impossible burdens are being placed on them throughout their operations, since the judge made no general observations about how the Council should comport itself.
10. What he did find was that this obstruction, placed where it was, was an unreasonable and foreseeable danger, and he was entitled so to find. I see no prospect of the Court of Appeal going behind that judgement, and therefore I would not grant permission.
11. Thank you for your submissions, Mr Foster. I am sorry that you had a journey from the north here. There is a case which you might like to draw to your client's attention called Khreino v Khreino, Family Law Reports 2000, which indicates the type of case in which it is appropriate for counsel to be instructed to renew an application, and where it is not. Those instructing you may think on future occasions that, once they have had the view of the Lord Justice on paper in a case like this, that is probably the end of the road.
ORDER: Application Dismissed.