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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Griffiths v Gwynedd County Council (Rev 1) [2015] EWCA Civ 1440 (22 October 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1440.html Cite as: [2015] EWCA Civ 1440 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY AND FAMILY COURT
(HHJ SEYS LLEWELLYN QC)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE BURNETT
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MELVYN GRIFFITHS | Claimant/Applicant | |
-v- | ||
GWYNEDD COUNTY COUNCIL | Defendant/Respondent |
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Mr T Horlock QC & Mr R Whitehall (instructed by Berrymans Lace Meyer) appeared on behalf of the Respondent
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LORD JUSTICE CHRISTOPHER CLARKE:
"Category 1 defects should be corrected or made safe at the time of the inspection if reasonably practicable. In this context, making safe may constitute displaying warning notices, coning off or fencing off to protect the public from the defect. If it is not possible to correct or make safe the defect at the time of inspection, which will generally be the case, repairs of a permanent or temporary nature should be carried out as soon as possible, and in any case within a period of 24 hours. Permanent repair should be carried out within 28 days. Some authorities have formally adopted a higher level response time of 2 hours for those Category 1 defects considered to pose a particularly high risk. Others, whilst not formally defining such a high risk category, have arrangements in place to deal with situations requiring a particularly urgent response as they arise."
Paragraph 9.4.20 of the Code provides as follows:
"Category 2 defects are those which, following a risk assessment, are deemed not to represent an immediate or imminent hazard or risk of short term structural deterioration. Such defects may have safety implications, although of a far lesser significance than Category 1 defects, but are more likely to have serviceability or sustainability implications. These defects are not required to be urgently rectified and those for which repairs are required shall be undertaken within a planned programme of works, with the priority as determined by risk assessment. These priorities together with access requirements, other works on the road network traffic levels, and the need to minimise traffic management, should be considered as part of the overall asset management strategy. The programmes of work for their rectification should be part of the HAMP."
"Category 2 defects may be categorised according to priority, high (H) medium (M) and low (L). Authorities should adopt a range of local target response times for Category 2 defects and apply them in responding to various categories of defect based on the risk probability and its likely impact. This should also take into account the likelihood of further deterioration before the next scheduled inspection, and where this is a high probability, the defect should either be dealt with as Category 1 or an intermediate special inspection programmed."
Paragraph 9.5.3 provides as follows:
"All risks identified through this process have to be evaluated in terms of their significance, which means assessing the likely impact should the risk occur and the probability of it actually happening. A defect risk register will considerably assist the risk evaluation process. Although it may not be possible to include every conceivable risk, the register identifies a wide range of risks likely to be encountered. This enables the vast majority of all risks actually encountered through comparison, interpolation or extrapolation, to be assessed with the identified risks. The risks contained in the register are based upon the highest assumed risk attributable to the type of defect, position and assessed type of usage. Local knowledge could assess the risk differently."
The last sentence is of some importance. It is reflected in the provisions of appendix B to the Code, which sets out in B.2.1 a checklist of deficiencies to be identified during safety inspections. These include pot holes, cracks or gaps and edge deterioration in the running surface. Paragraph 3.1 provides:
"Whether these defects should be treated as Category 1 in particular circumstances and the nature and speed of response will depend, amongst other things, upon the assessed risk posed by:
• the depth, surface area or other degree of deficiency of the defect or obstruction;
• the volume, characteristics and speed of traffic;
• the location of the defect relative to highway features such as junctions and bends;
• the location of the defect relative to the positioning of users, especially vulnerable users, such as in traffic lanes or wheel tracks;
• the nature of interaction with other defects;
• forecast weather conditions, especially potential for freezing of surface water."
"24. At the time of the alleged accident inspections were largely based on convention and common sense.
25. As a 'rule of thumb' I use a guideline of 60 mm to represent an actionable category 1 defect but I used my experience and common sense when carrying out inspections.
26. If a defect was dangerous I would make arrangements for it to be repaired urgently. A category 1 defect must be made safe in 2 hours with a permanent fix in 28 days. A category 2 defect (any other defect) can go on any planned patching programmes."
In the same case Steyn LJ said this:
"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 ever 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."
"11. Section 41 has been said to impose an absolute duty, but the term 'absolute' in my opinion has with respect to be treated with care. There is a risk of it suggesting that the duty is to maintain the highway to such a standard as in effect to guarantee the safety of its users, and it is plain that that is by no means the measure of the duty; it is absolute only in the sense that it is not merely a duty to take reasonable care but to maintain the highway to an objective standard. The statute does not state what the standard is. The authorities, however, are as it seems to me clear as to the nature of this standard. The highway has to be maintained in such a state of repair that it is reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition. See Griffiths v Liverpool Corporation [1967] QB 376 at 389 F-G, Goodes v East Sussex County Council [2000] 1 WLR 1356 at 1361 F-H. Compare Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291 at 293. And Mr Lewis QC this morning has referred also to Cenet v Wirral Metropolitan Borough Council [2008] EWHC 1407 at paragraph 27 where, citing Rider v Rider 1 QB 505 at 514, Swift J stated that the highway must be "'free of danger to all users who use the highway in a way normally expected of them.'"
Then paragraph 12:
"12. Foreseeability of harm will not of itself entail the conclusion that the highway is unsafe. As Lloyd LJ said in James v Preseli Pembrokeshire District Council [1993] PIQR 114 at 119:
'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.'"
"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. The test to be applied is an objective one. The question, in effect, is: does the judge, as the embodiment of the reasonable person, think that the council has taken such steps as are reasonable, in all the circumstances, to keep the visitor -- the claimant here -- reasonably safe? What the council sets as a policy is certainly not determinative, although I would not go so far as to say that it is irrelevant. One can immediately see that the council's policy could not be determinative. If the council had a policy that footpaths need not be repaired unless there was a defect of more than two inches, no one would suggest that, if that policy were followed, it could be said that the council had taken such care as was reasonable. Conversely, if the council wished to set a very rigorous policy in an attempt to provide a high standard for its visitors, it would not follow that the standard of what is reasonable must be set at the same level."
"The judge's finding that the road was in places at least dangerous is implicit in several passages of her judgment... She was plainly entitled so to hold and there was little doubt about it on the facts. As a matter of abstract logic, I am content to accept the proposition of Lord Faulks QC for Devon that the fact that its highway staff would have regarded the defective road edge as a category 1 defect, according to their working manual and thus as requiring immediate attention on grounds of safety, does not of itself mean that the road was dangerous. It might theoretically be possible to postulate a case in which a defect met the Manual's definition of a category 1 defect yet there was no prospect of anyone being put in danger from it in the course of ordinary road use. However, it is not easy to imagine such a factual scenario and, on the facts of this case, the reason why the defect was category 1 was quite plainly because drivers might be put in danger by being thrown off course."
LORD JUSTICE BURNETT: