J U D G M E N T

1. LORD JUSTICE AULD: Mr Maguire, Mr Whyatt. As to the photographs taken in 1997 and 1999 showing the remedial works done, Miss Jones' photographs on 5th December 1996 showing a close-up of the scene of the accident and the photographs already before the judge, whilst we doubt whether there is anything truly fresh about those pieces of evidence which would bring them within the normal rule, there being no objection to the court considering them, we will admit them into evidence.

2. As to the recent witness statements of Mr Kilpin and Mr Cuddy of 30th April 2004 purporting to clarify Mr Kilpin's report of 6th January 1997, we take the view that it is more than that. It is setting out what the earlier report did not set out, and doing so by way of value judgment as to the safety or dangerousness of the site in question, which intrudes on the function of the court, apart from anything else. This is material which could have been put before the court, in not quite that form but some different form from the report, if Mr Maguire had sought it at the time. He could have challenged the order of District Judge Buckley. He did not do that.

3. We will not admit the witness statements of Mr Kilpin and Mr Cuddy of 30th April 2004 for that reason.

(Submissions continued)

4. LORD JUSTICE AULD: This is an appeal by Mr Kenneth Maguire against an order of His Honour Judge Appleton of 17th November 2003 dismissing his claim in negligence and/or breach of statutory duty under section 41 of the Highways Act 1980 against the Lancashire County Council.

5. The matter comes to this court on permission to appeal having been granted by Waller LJ.

6. The claim arose out of an accident that occurred on 27th November 1996 at about 6.00 pm, when Mr Maguire was jogging along a footpath, known as East Park Drive, near the model village at Stanley Park in Blackpool. It was dark at the time, it being November. But the path ran alongside a main road which was lit by high-level sodium lighting which gave some illumination to the path. This was a footpath which, on Mr Maguire's evidence at trial, was much used by walkers and joggers. He himself was (I hope he will not mind my saying this) a serial jogger. He had jogged serially and seriously for a number of years, in the course of which he had suffered, as many joggers do, various problems with his ankles from time to time.

7. On this occasion Mr Maguire was running along the path which was tarmacadamed and approaching an area of it which was flanked by grass banks which had seemingly been recently disturbed, so that the tarmacadam of the path had been made seriously uneven in an area in which it surrounded a manhole cover.

8. Mr Maguire claims that as he reached this section of the path he stumbled or slipped when his left foot hit an uneven part of the surface near the manhole cover, causing him sufficient injury to call on a passing motorist to take him home. It was also serious enough, as the night wore on, to cause him to attend a local hospital for diagnosis and treatment, where he was given crutches and prescribed analgesics for the pain and injury that he had suffered to his left ankle as a result of the accident.

9. The scene was well demonstrated to the trial judge, as well as to this court, by photographs taken shortly afterwards of the path (page 44 of the appeal bundle) showing the area of disturbance to the banks on each side it. There was a manhole roughly in the middle of the path and considerable unevenness in the area immediately surrounding it, not only in the sense of a gradient of some 3 to 4 inches from level to manhole cover level, but also an unevenness of part of that gradient in itself.

10. In addition to that photographic illustration of the scene, there was a diagram, which was put before the judge as an agreed diagram (page 42 of the appeal bundle). It shows the contours, if you like, of the unevenness around the manhole cover and identifies the difference in levels as having a span of 3 to 4 inches, and an immediate gradient at the point where the rise took place around the cover of 2:1.

11. That visual indication of the scene of the accident was supported by an expert's report written by Mr Cuddy, to which the photographs and the diagram were annexed, in which he described the condition of the scene at the time of the accident. Mr Cuddy comes from a firm of chartered surveyors and estate agents. In his report, which was before the judge as an agreed report of 6th January 1997, he said at paragraph 3.1:

"We inspected the footpath on the 16th December 1996 [that is shortly after the accident] and found it to be unfit for purpose in that there were marked differences in made levels in the immediate area around the inspection chamber cover. We calculate that the levels differed by as much as 75 - 100mm (3 - 4"), most pronounced on the western side, with gradients in the order of 2:1 or more. The differing levels and severe gradients constitute a risk which would be further exacerbated during the hours of darkness.

3.2. The footpath was found to have been repaired and levelled to a satisfactory condition at a subsequent inspection conducted on 3rd January 1997."

12. There was also a report before the judge of a Mr Martin Smith on behalf of the council, in which he described, in paragraphs 7, 8 and 9, the condition of the path in the following terms:

"7. The composition of the foot path results in it being somewhat flexible and because of this there are minor undulations caused by ground movement, tree roots and the like.

8. At the point where Mr Maguire is said to have fallen there was a drainage cover which was raised slightly above the level of the pathway by a maximum of 1 inch at the highest point of the raise.

9. I did not consider that the defect was dangerous although I decided that repairs were necessary and I instructed repairs to be carried out with a response time of category 3, which is for minor works which should be completed within 5 weeks of the instruction."

So that was the scene of the location at the time of the accident.

13. After the accident Mr Maguire's evidence was that his ankle remained swollen for some six months, and he subsequently developed post-traumatic reflex osteodystrophy (RSD) requiring physiotherapy. He attended a pain clinic, following which he was prescribed a drug to ease the symptoms of that condition. He later developed side effects which included disturbed sleep, agitation, panic attacks and other symptoms. As a result, he made this claim. He maintained that he was unable to spend any length of time standing on his feet and was unable to participate in certain sports, play pool or go dancing.

14. However, the medical reports showed a somewhat different picture, I mention this because it goes to an issue of credibility on the question of liability. Two medical reports were prepared for the benefit of the trial judge, one by Mr Sampath of 5th May 1999 on behalf of Mr Maguire and the second of Mr Power of 19th December 2000 instructed by the council. Both doctors concluded that Mr Maguire had suffered RSD as a result of the accident, but were of the view that his condition would improve over time.

15. In a joint statement of 25th April 2001, they agreed, first, that Mr Maguire had suffered from a mild case of RSD and asserted that his prognosis for a complete recovery was excellent. Second, it was appropriate for him to have been off work for between six to nine months, and that certainly by December 2000 he had been fit to resume all pre-accident social, recreational and occupational activities. He was, it seems, unemployed at the time of the accident and not able to obtain further employment for some time.

16. The matter took a considerable time to come to court. It was not heard until 17th November 2003 by His Honour Judge Appleton, that is to say 7 years after the accident occurred.

17. At the trial (which was, at the judge's direction, on the issue of liability only) Mr Maguire gave evidence, supported by two immaterial witnesses, and Mr Cuddy's report to which I have referred. The council called no evidence, though much of its disclosed material was in the trial bundle before the judge, including Mr Smith's report and the agreed medical statement of the two doctors.

18. In the course of his evidence Mr Maguire was cross-examined closely by Mr Kenny, then appearing on behalf of the council, as to his claimed medical suffering as a result of the accident. He was cross-examined to some advantage to suggest, and certainly it appears in the mind of the judge, that Mr Maguire had not been telling the truth about the state of his injury and that he was far fitter than he was letting on for the purpose of the claim. Counsel having closely examined on that, designedly to test his credibility, then went on to question him about the accident itself, in the course of which Mr Maguire gave evidence as to where exactly (by reference to the photographs on page 44 of the appeal bundle) his foot had slipped, and also confirmed that in questions put to him by the judge. He even marked the spot. He drew a cross on the rise in the mound around the manhole cover where he said his left foot slipped as he was negotiating the cover.

19. The judge appears to have been sceptical of Mr Maguire's claim for two main reasons, both of which I have mentioned, and this appears from the way he set out his reasons in his judgment. The first was the serious contradiction in Mr Maguire's account of his accident injury which had been exposed by Mr Kenny in cross-examination. The second was the fact of his history of considerable, some might say excessive, jogging or running which had clearly caused him ankle or foot trouble before on several occasions. However, the judge's main concerns on liability seem to have been, first, uncertainty, despite Mr Maguire's clear identification of the spot or of the exact location of the accident where his foot slipped, and, second, as to how the injury described by Mr Maguire could have occurred.

20. Moreover, the judge does not appear to have considered or given very much attention to what can clearly be seen on the photographs at page 44 of the appeal bundle of the immediate location of the accident, namely the dangerousness of the condition of the manhole cover and the tarmacadam surround to it.

21. The judge also seems to have been influenced by the fact that there had been no previously recorded accidents at or about this spot, despite the considerable use of the path by joggers such as Mr Maguire. That approach of the judge, which I have attempted to summarise, can be traced in the judgment, starting at paragraph 11:

"11. Mr Kenny during the course of cross-examination asked the claimant to mark on the photograph at page 75, precisely where his foot landed. That, as a matter of record, he did in the trial bundle with a red cross. There is in the report from Mr Cuddy at page 73 a diagram, and that diagram gives an approximate difference of levels at Points to A to A as being between three and four inches. When the photograph, at page 75, is looked at where the claimant says his left foot landed, his left foot would have simply landed in a position where the ground beneath him was, instead of being flat, slightly uphill. It is fair to say that the major difference in levels as it appears from the photograph, in fact, appears between the edge or verge of the path and the rise going up to the level of the manhole cover, but that was not where the claimant said he trod.

12. What the claimant said in cross-examination about his accident was that: 'It set my ankle over' and he gave a demonstration so that his ankle turned underneath him, in other words an inversion injury. It did not cause him to fall over he just stumbled.

13. Frankly, this court has the greatest difficulty in accepting from the claimant that the mechanism of the accident and the place of the accident is, on a balance of probabilities, more likely than not to be correct. I struggle to see how he could have suffered the accident he said he suffered by his foot landing where he says, and marked on the plan, it did."

22. Then at paragraphs 17 to 19 the judge turned to the lack of previous history of reported accidents at this spot:

"17. It is also plain and it does not help the claimant that the surveyor's report is not given in terms of the conditions of liability set out in the highway dis-repair cases, the most that Mr Cuddy is prepared to say about the footpath is that:

'The differing levels ... and severe gradients constitute a risk, which would be further exacerbated during the hours of the darkness'.

18. The claimant during the course of cross-examination accepted that he had run this route before but he had never fallen at this location. He had seen people jogging there as well. There is an athletics club at Stanley Park and they use this pathway as a running area. He also admits that in summer there is very considerable pedestrian traffic for this is close to the entry to the model village, which is a considerable tourist attraction, as indeed is Stanley Park itself; well patronised by people walking around the path in the park.

19. The trial bundle shows that the previous solicitors had made rigorous enquiries of the Highway Authority to try and discover whether there were any previous accidents at the site. A huge amount of industry has gone into that endeavour and the answer is not one that is favourable to the claimant's endeavours to make out a case that the highway was dangerous. There is no example of any accident involving this particular piece of highway at this spot. There is, moreover, no recorded complaint of any danger here either, from any member of the public."

23. The judge then turned to the test which he had to apply, correctly identifying it as one of dangerousness as stated by Steyn LJ (as he then was) in Mills v Barnsley Metropolitan Borough Council[1992] PIQR 291 at 293, in which he said that a claimant had to prove that:

"... 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; ..."

24. The judge expressly set out that test and those words in paragraph 22 of his judgment, and then went on to his critical findings, so far as they went, in paragraphs 23 and 24:

"23. Well the relevant factors are - and it does not seem to have been attended to for quite a number of years - that there have been during those years a very considerable pedestrian usage and also a not insignificant usage by joggers. There is not one recorded similar incident, accident or even complaint and in those circumstances, coupled with my misgivings about whether, on balance, the claimant could possibly have suffered an inversion injury by treading on that part which he says he trod on, it seems plain to me that the claimant's case is doomed to failure. All that the surveyors have said in their report was that it was a risk.

24. This court, bearing in mind what Lord Justice Steyn has said, has got to be satisfied that it was dangerous and it seems to me that, given the history of the site, the court cannot be satisfied that the claimant has proved that it was dangerous. In those circumstances, the claim fails and there will be judgment for the defendant against the claimant on the claim."

25. In concluding in that way as he did, with strong emphasis on the lack of any history of previous accidents at or near the site, the judge seemingly was not affected by what is clear from the photograph at page 44 of the appeal bundle, namely that this particular part of the footpath had, in the not too distant past, been disturbed. The bank on the roadside had either been dug up or interfered with. It looks very much as if there may have been works in some way connected with the manhole or pipes leading to it. So, the condition of the path at the material time may well not have been typical of this section of the footpath over the many years which the judge had in mind in those references in paragraph 23 of his judgment.

26. Mr Maguire, in well and orderly presented submissions, complained in summary that the judge had misread the evidence, had given it insufficient weight in some respects and inappropriate weight in others, so as to lead him into error as to where the accident did or did not occur and, more critically, as to whether the condition of the footpath at the point where it undoubtedly did occur was dangerous in the sense described by Steyn LJ in Mills v Barnsley. On the face of it, it was an unappealing series of submissions, going mainly to the judge's attribution of weight or non-attribution of weight to various factors in the case.

27. Mr Whyatt, for the council, who did not appear in the court below, made short submissions to the court in which he maintained that, on the evidence available to the judge, it was open to him to find that the condition of the footpath around the manhole cover fell short of the designation of dangerous as described by Steyn LJ in Mills v Barnsley. He said that, although Mr Maguire had identified at the trial the precise location of the accident and the nature of it, the very fact of the accident itself should not be taken to be a necessary indicator of dangerousness. He said that the judge was entitled to attach little weight to the accident itself and that he was entitled, too, to give as much reliance as he considered fit to the report of Mr Cuddy, interpreting it in the way he did, again, as falling short of dangerousness in the sense used in this context.

28. In my view, the essential evidence before the judge was: first, Mr Maguire's clear indication in evidence of the exact location, just on the rise before the manhole cover where he stumbled; second, the fact that he did stumble and undoubtedly suffered some trauma to his left ankle, requiring him to seek hospital attention that night; third, the clear picture of serious unevenness of the path around the manhole cover, to be seen from the photographs before the judge and confirmed on a proper reading of Mr Cuddy's report by him at the time; and fourth, not so central but nevertheless of relevance, the prompt response of the council in repairing the immediate section of the path where the accident occurred.

29. It seems to me that of those factors the most critical is the picture of danger that springs out of the photographs on page 44 of the appeal bundle showing the scene at the time of the accident. It shows a sharp and uneven rise of 3 to 4 inches at a very steep gradient immediately next to and before, as Mr Maguire approached it, the manhole cover. This was a danger, as Mr Cuddy I think acknowledged, which was aggravated by inadequate lighting on a November evening and one, given the signs of recent works on the flanks of the footpath at the time, unlikely to have been a familiar landmark to regular users of the footpath.

30. From the passages in the judgment that I have cited, the judge seems to have allowed himself to become sidetracked from what he could see for himself in the photographs and from Mr Cuddy's report, by relevant but not so central factors to which he referred in paragraph 23 of the lack of any previously reported accident at the site, which was at best neutral on the issue of liability, and second, the possible misunderstanding to be seen in paragraphs 13 and 23 of his judgment as to exactly where and the nature of the terrain Mr Maguire was claiming that he stumbled.

31. In my view, the judge was plainly right in his adoption of Steyn LJ's test in Mills v Barnsley, but plainly wrong in his application of it to the facts on all the uncontradicted evidence of Mr Maguire before him as to how and where the accident occurred.

32. Accordingly, I would allow the appeal on the issue of liability.

33. LORD JUSTICE GAGE: I agree.

ORDER: Appeal allowed with costs here and below; judgment for the claimant on the issue of liability and the matter remitted to the County Court on the issue of quantum.

(Order not part of approved judgment)