Atkins v London Borough of Ealing

This is an appeal from the decision of HHJ Oppenheimer sitting in the Brentford County Court on 20 April 2006. It is brought with leave of the High Court granted on 4 July 2006. The Judge gave judgment in favour of the Claimant who had claimed damages for personal injuries suffered on 3 December 2003 when she was walking down Crown Street in Acton and stepped on a manhole cover which tilted causing her foot to fall into the manhole. She suffered injury to her ankle. Damages were agreed in the sum of £2750. The case was a fast track case. The Judge’s reasons for his judgment were given on the day of the hearing. They were detailed and extended over some 8 pages and 83 paragraphs.

The Defendant appeals against that judgment. There is no dispute that by reason of the tendency of the manhole cover to tilt when stepped on the highway was dangerous such that the Defendant had failed to maintain the highway pursuant to section 41 of the Highways Act 1980. The basis of the appeal was the submission that the Judge ought to have held that the Defendant had proved that it had taken such care as in all the circumstances was reasonably required to secure that the manhole cover (which was owned by Thames Water) was not dangerous and so was not liable for the injuries suffered by the Claimant pursuant to section 58 of the Highways Act 1980.

The Defendant’s system for inspecting highways was that an inspector inspected the highways on foot once a month looking for defects, namely, a “trip” or a difference in height between two adjacent surfaces of the highway of more than 19mm. Data was entered on a hand held device and later downloaded into a computer. The judge noted the evidence of one of the Defendant’s witnesses, Mr.Barrett, that “the subject defect [that is the defect which caused the manhole to tilt] could only be recognised as a defect when it was actually trodden upon, because it otherwise appeared to be seated properly in its frame and flushed with its surroundings.” Thus the Defendant’s system was not able to detect the dangerous condition of the manhole cover.

Although there was some debate on the appeal as to the basis upon which the Judge found that the Defendant had failed to prove that it had taken such care as in all the circumstances was reasonably required to secure that the manhole cover was not dangerous I consider that the essence of the Judge’s reasoning is contained in paragraphs 75-83 of the judgment as elaborated by the Judge during the discussion on permission to appeal. The judge noted the submission of counsel for the Claimant that the Defendant’s inspection regime was not sufficient (paragraph 75). He recounted the submission in these terms (paragraph 76):

“He submits that this is a main thoroughfare. It cannot be sufficient to say that an inspection by “eye alone” is sufficient. The reason is that if you fall down one of these manholes, as people do from time to time, that is potentially very dangerous. They can be deep. They can have electric cables. Once can sustain severe physical damage.”

The Judge said (in paragraph 79) that this was a case where the Defendant had to submit that

“it is never necessary to inspect the frame of a manhole cover unless and until a manhole cover is known to be coming to the end of its useful life unless there is a fall, a trip of 19mm or more.”

He continued as follows:

“80.

I can foresee cases where the Borough might bring evidence, if this should ever happen again, giving some indication to the Court as to the sheer number of these covers and/or the difficulty or impossibility of inspection. There is no evidence in this case of such difficulty or impracticality.

81.

That being so, it seems to me that the Borough have failed to discharge the burden of showing that they had taken the care required in section 58. It is not for this Court to say what they should have done. This Court could not say what they should have done because it does not have any evidence as to the practicality of checking manhole covers such as this.

82.

The only thing that the Court needs to do is find that on the evidence, and this is the finding of the Court, the Borough has failed to discharge the burden of showing that it had taken such care as in all the circumstances was reasonable in seeing that this part of the highway was safe.”

During discussion about permission to appeal he clarified paragraph 82 as follows:

“There is no question that periodic inspections of manhole covers should take place to see whether those covers are secure, in my judgment. What I am not prepared to say is what the frequency of those inspections is. If I did not say that in my judgment I apologise to you. I certainly meant to say that.”

It seems to me that the basis of the judgment is clear from these paragraphs. He considered that a reasonable system of inspection required the Defendant to inspect manhole covers to check that they were secure and not liable to tilt. The Defendant’s system of inspection did not attempt to check whether manhole covers were secure. No evidence had been adduced by the Defendant to show that it was difficult or impractical to have a system whereby manhole covers were inspected to check that they were secure. The Defendant had therefore failed to prove that it had taken the care required by section 58 of the Highways Act 1980.

Counsel for the Defendant (who did not appear below) criticised the judgment in several ways.

It was said that until late in the trial there was no allegation that anything other than a visual inspection of the highway was appropriate. It was said that the Defendant had pleaded its visual system of inspection and that there had been no Reply alleging that some other system was required. I do not accept that this is a fair summary of the issues as they stood on the pleadings. The Claimant had pleaded that she had stepped on a manhole cover which titled causing her right foot to fall through into the hole. She further pleaded that the hazard to lawful users of the highway was that the manhole cover had become loose and tipped up when trodden upon. She then pleaded that the Defendant failed to maintain a system of inspection so that that hazard may have been detected and remedied prior to the Claimant’s accident. It was therefore clear that the allegation was that the Defendant ought to have had a system whereby the hazard, namely, the ability of the manhole cover to tilt when stood on, would be detected. The Defendant pleaded by way of defence that no reasonable (visual) inspection would have identified the hazard because the cover did not tilt until it was stepped on. No Reply was served but there was a deemed joinder of issue as to the sufficiency of the Defendant’s system of inspection. Since the burden of proving that the appropriate care was taken lay on the Defendant it was up to the Defendant to adduce evidence to prove that a system of visual inspection alone was reasonable. Thus the issue as to the adequacy of the Defendant’s system was an issue on the pleadings.

It was said that the Judge placed undue weight on the presence of a crack in the concrete surrounding the manhole cover. The presence of this crack had been discussed in the evidence before the Court but somewhat inconclusively. The Judge described the crack as a patent defect and referred to evidence of Mr.Drury, one of the Defendant’s witnesses, to the effect that it might or might not affect the manhole cover. The Judge did not, however, on my reading of the judgment, rely upon this as a reason for his decision. The crack featured in the second way in which counsel for the claimant had put the case, namely, that the Defendant’s inspection was carried out negligently because the presence of the crack ought to have alerted the inspector and caused him to inspect the manhole cover. But the Judge does not appear to have accepted this second way of putting the case. He founded his judgment on the need for a system of inspection whereby manhole covers were inspected to ensure that they were secure. That was the first way in which counsel for the claimant had put the case.

It was said that the Judge was wrong to make reference (as he did in paragraph 79 of his judgment and in earlier paragraphs) to the possibility of a manhole cover coming to the end of its natural life. It was said that there was no evidence about this and that the question arose out of exchanges between the Judge and counsel. It is true that the question arose out of exchanges between the Judge and counsel but in essence it was a concession by counsel for the Defendant that there could be circumstances in which something more than a visual inspection was required. I do not consider that the judge’s mention of this point in any way invalidates his conclusion. His conclusion was that there ought to have been a system whereby manhole covers were checked to ensure that they were secure. He was not limiting this conclusion to circumstances where a manhole cover was coming to the end of its useful life.

The final criticism of the judgment was much broader than any of the foregoing. It was that the Judge had applied too high a standard and had placed too high a burden on the Defendant. It was said that he had failed to strike the balance between public and private interests which the Courts have indicated is necessary in this field. In this regard I was referred to a number of cases including Mills v Barnsley MBC [2002] PIQR 291 at p.295 (per Steyn LJ). As examples of this approach I was referred to two decisions in the County Court, Jackson v Gloucestershire County Council 25 March 2004 per HHJ Corrie and Thompson v Leeds City Council 16 March 2004 per HHJ Langan.

I was not persuaded that the Judge had to failed to strike the necessary balance between public and private interests or had placed too high a burden on the Defendant.

The Judge noted that Mr.Barrett, who was the proprietor of the company which carried out inspections on behalf of the Defendant, agreed that if a manhole cover tips the consequences could be “rather catastrophic” and that it could be reasonable for there to be a closer inspection of the manhole covers than the system provided for (see paragraph 35). Having heard evidence from Mr.Drury (from the same company) he concluded that Mr.Drury was concerned with one thing only, namely, whether there is a trip of 19mm. and on that basis nothing would be done about the manhole cover because there was no trip of anything near 19mm. (see paragraphs 53,57 and 59). Thus the Judge had to weigh on the one hand private interests, namely, the risk of very serious personal injury caused to a person who stood on a manhole cover which tilted and on the other hand the public interest, namely, the burden on the Defendant in terms of cost or impracticality in inspecting manhole covers to check that they were secure. The Judge had the public interest in mind in paragraphs 80 and 81 which I have already quoted but he also observed that the Defendant had adduced no evidence to suggest that a system of checking manhole covers to ensure that they were secure would be so difficult or impractical that the burden should not be placed upon the Defendant.

Steyn LJ in the judgment to which I was referred explained that the reason why unreasonably high standards should not be set was to avoid diverting scarce resources from situations where maintenance and repair of highways were more urgently needed. It seems to me that manholes which are liable to tip if stood on by a pedestrian in a shopping street (as I was told Crown Street, Acton is) are situations where maintenance and repair are urgently required because of the risk of serious injury to a person who might fall down the manhole. The Defendant in the present case, it seems to me, gave no consideration at all to the question how to inspect manhole covers to ensure that they were secure and not liable to tilt. Rather, the Defendant’s system of inspection was designed to identify and avoid a different hazard, namely, uneven pavement surfaces which might cause a pedestrian to trip. The Defendant had no system at all for checking whether manhole covers were secure and not liable to tilt if stood on. There was no evidence adduced by the Defendant, in an attempt to discharge the burden of proof which lay upon it, to prove that loose or tilting manhole covers were so rare that it was unreasonable to expect highway authorities to have a system of inspection designed to check whether manhole covers were secure and not liable to tilt if stood on. Counsel for the Defendant, at the end of his reply, submitted that in the absence of evidence that people fell through manhole covers frequently the Judge’s conclusion that manholes covers should be inspected was wrong. In my judgment this submission is mistaken because the frequency of a particular type of accident is one of the circumstances of the case on which the Defendant, if he wishes to rely upon it to say that he has taken such care as is reasonable, has the burden of proof.

The Judge had regard to the matters in section 58 (2) to which he was obliged to have regard. I also have had regard to those matters. The first matter is the character of the highway and the traffic which was reasonably expected to use it. Crown Street is a shopping street so it could be expected that many pedestrians would use it. It is therefore a different type of highway from that considered in Jackson v Gloucestershire County Council which was a fairly remote country road, albeit one regularly used by horses and their riders. So the decision in that case (which also appears to have concerned a manhole cover which tipped when weight was placed upon it) that it was not reasonable for the highway authority to have a system of inspecting manhole covers by walking and jumping on them cannot determine the outcome of the present case.

The second matter is the standard of maintenance appropriate for a highway of the character in question. It seems to me that the standard of maintenance appropriate for a manhole cover on a pavement in a shopping street is a standard which ensures, so far as is reasonable, that pedestrians are not at risk of falling into a hole which may be large and contain pipes, cables and other items. Much the same can be said in relation to the third matter, the state of repair in which a reasonable person would have expected to find the highway. Such a person would not expect a manhole which, when stood on by a pedestrian, tilts thereby giving rise to a clear risk that a pedestrian might fall into the hole.

The fourth matter is whether the highway authority knew or could reasonably have been expected to know that the condition of the highway was likely to cause damage. There was no reliable evidence in this case that the Defendant knew that this manhole was loose and liable to tilt. But equally there was no evidence adduced by the Defendant that loose manhole covers were so rare that they could not be foreseen. The fifth matter is any matter which suggests that the highway authority could not reasonably have been expected to repair the manhole cover before the accident. There was no such matter in the present case. The Defendant’s visual inspection did not identify the defect in this manhole but it could not do so and was not designed to do so.

It was said that the inability of the Judge to say how frequently the Defendant should have inspected the manhole cover demonstrated the lack of evidence before the Court to justify the decision of the Judge. I do not consider this to be a valid criticism. The circumstances to which I have referred in paragraphs 15-19 above show that it was necessary to have some system of checking the security of the manhole cover. There was none. Thus the Judge did not have to decide what frequency of such inspection was appropriate. In any event that would depend upon, amongst other matters, the number of manhole covers to be inspected and the reason why manhole covers become liable to tilt when stood on. There was no evidence as to either matter. When a highway authority is unable to prove the cause of a defect such as that which afflicted the manhole cover it seems to me that that inability is very likely to cause the authority difficulty in discharging the burden of proof laid upon it by section 58 of the Act.

For these reasons I was not persuaded that the Judge had failed to strike the necessary balance between public and private interests or had placed too high a burden on the Defendant. I would have reached the same decision as he did. The appeal is therefore dismissed.