King Lifting Ltd v Oxfordshire County Council

This case concerns a road accident which occurred on 16^th July 2012 on Woodeaton Road, near Woodeaton, Oxfordshire. The claimant is a crane hire company which operates a fleet of cranes and the defendant (hereinafter referred to as “the council”) is the highway authority in respect of Woodeaton Road under the Highways Act, 1980.

At about 6 p.m. on the day in question, a Demag AC60-3 All-Terrain Mobile Crane owned by the claimant was being driven southbound along Woodeaton Road by Mr. Lee Lawrence, an employee of the claimant, when it came off the carriageway and toppled over into a brook, known as Bayswater Brook, which ran alongside the road. The place where the accident occurred was at the end of a section of the road on which the southbound carriageway had been closed to allow for some proposed road works. This section of the road was controlled by temporary traffic lights. In fact, the road was due to be closed from the next day for the works to be carried out.

Fortunately, Mr. Lawrence did not suffer any significant injury, but the crane was badly damaged. The claimant’s claim for damages is in respect of the costs of the recovery and repair of the crane and associated losses. The quantum of the claimant’s claim has been agreed, subject to liability, in the sum of £260,000 inclusive of interest. The council has a counterclaim against the claimant for the costs of repairing damage to the road caused in the recovery of the crane. The quantum of the counterclaim has been agreed, again subject to liability, in the sum of £11,500 inclusive of interest.

Whilst various matters concerning the road and the accident are not in dispute, a central issue in the case is the cause of the crane leaving the carriageway and toppling into the brook. It is the claimant’s case that the eastern edge of the road surface cracked or collapsed beneath the crane, as a result of which it went onto the soft verge which gave way under the crane, causing it to topple over. It is the council’s case that the crane driver, Mr. Lawrence, drove the crane off the carriageway, causing the verge to collapse and the crane to topple over.

The claimant claims that the council was in breach of its duty under Section 41 of the Highways Act, 1980, in that it failed to maintain the carriageway and verge of Woodeaton Road and was negligent at common law in various respects regarding the inspection and maintenance of the road, the safety of the road, and the layout of the traffic management system for the proposed road works.

The council denies that it was in breach of its duty under Section 41 of the 1980 Act and relies upon the statutory defence contained in Section 58 of the Act. It further denies any negligence and asserts that the sole cause of the accident was the negligence of the crane driver in driving the crane off the carriageway.

The evidence on behalf of the claimant consisted of witness statements and oral evidence from Mr. Lawrence, the crane driver, and Mr. Martin New, the claimant’s group operations manager, together with reports and oral evidence from expert witnesses, namely Mr. Philip Mottram in the field of accident reconstruction and Mr. Michael Widdowson regarding highways inspection and maintenance.

The council relied upon the witness statements of Mr. Michael Dickerson, a highways inspector (who could not attend the trial due to illness), and the witness statements and oral evidence from Mr. Robert Burgess, a senior technician in the council’s highways team, and Mr. Andrew Vidovic, a senior engineer in the council’s bridges team. The council’s expert evidence consisted of reports and oral evidence from Mr. Andrew Hill (accident reconstruction) and Mr. Mike Hopwood (highways inspection and maintenance). Mr. Mottram and Mr. Hill had prepared a joint statement setting out the matters upon which they agreed and disagreed, as had Mr. Widdowson and Mr. Hopwood.

In reaching my conclusions in this case, I have regard to all of the evidence referred to above and to the helpful oral and written submissions of counsel.

It is appropriate to set out some of the relevant matters which do not appear to be in dispute. Woodeaton Road is an unclassified two way rural road subject to the national speed limit which runs south to north from the A40 trunk road to Woodeaton village. Bayswater Brook runs alongside the road’s southern end over a distance of about 0.8 miles, with the width of the grass verge between the carriageway and the brook varying at different locations. On Elsfield Road near to the junction with the southern end of Woodeaton Road was a sign prohibiting goods vehicles in excess of 7.5 tonnes from using Woodeaton Road “except for access”. There was also a sign which said “Unsuitable for HGVs”. It is accepted that heavy vehicles did use Woodeaton Road for access to Woodeaton and other locations on the road and that it was regularly used by large farm vehicles, particularly during the harvest season.

The crane involved in the accident has a lifting capacity of 60 tonnes. It has a front, middle and rear axle to each of which were fitted single wheels and tyres on each side. The load on each axle was 12,000 kilograms, so the total axle load was about 36 tonnes. There is 2.835 metres between the centres of the front wheel and the middle wheel, and 1.650 metres between the centres of the middle and rear wheels. The cab of the crane extends across the full width of the front of the crane and the driver’s position is on the left hand side of the cab, about 2.5 metres ahead of the front wheels. The front nearside tyre is approximately 390 mm. wide and the width across the vehicle between the outer edges of the front nearside and offside tyres is approximately 2.5 metres. The overall length of the crane is 11.625 metres.

On 12^th January 2012, the highway inspector, Mr. Dickerson, noted some erosion of the verge by the brook along a section of about 25 metres of Woodeaton Road, some 50 metres or so north of the location where the accident in question subsequently occurred. Because of the proximity of the road to the brook, a protective mesh fence and cones were placed along this section of the road where the erosion had occurred. On 17^th February 2012 some 15-20 metres of the verge in this section was found to have collapsed into the brook. Therefore, temporary traffic lights were installed and the collapsed section coned off to keep traffic away from it. Effectively, this meant traffic in each direction had to travel along the northbound lane. It was intended in due course that repair work would be carried out by the council. On 22^nd February 2012 the traffic management system was reinforced by the placing of water-filled barriers along the section, in addition to cones. Various road signs were erected in conjunction with this traffic light managed system. It was this traffic management system which was in place at the time of the accident on 16^th July 2012.

The court has been assisted by a considerable number of photographs of the eroded section of verge and the traffic management system before and on the day of the accident; of the accident scene showing the toppled over crane in the brook and the state of the road and verge; and of the remedial work carried out on the road subsequent to the accident.

I now turn to the evidence given in the trial. In his witness statement, the crane driver, Mr. Lawrence, stated that he had received training on the crane involved in the accident and had operated it on a number of other occasions. He had worked for the claimant for approximately three years and before that he had been employed as a mobile crane driver and operator for about twenty years. He described that on the day of the accident he had planned out his route to the school at Woodeaton where he was required to operate the crane to install some portacabins. He checked the internet that morning for any road alerts and the defendant’s website. He saw no notices posted to advise that Woodeaton Road was unsuitable for heavy vehicles or there were any road works on it. In fact, he found that there were road works on Woodeaton Road and he drove through them on the northbound carriageway. He said that so far as possible, because of the size of the crane, he drove in the middle of the road.

He then described how the accident occurred when he was driving back along Woodeaton Road from the school. He said that he drove through the road works section on the northbound lane and then, at the point where he exited the road works, the northbound vehicles were waiting stationary behind the traffic lights. There was a white van at the head of the queue of vehicles behind the traffic lights, which had overshot the stop marker by about three inches. He said the van then reversed back to provide sufficient room for the crane to exit the road works. Mr. Lawrence said that, in order to avoid the vehicles on the other side of the road behind the traffic lights, he had to use the whole width of the southbound carriageway. He was driving at no more than 5 m.p.h. and was careful to ensure that he remained on the carriageway and did not drive onto the verge. He had straightened the crane on the southbound carriageway adjacent to the traffic lights when suddenly and without warning the edge of the southbound carriageway collapsed, causing the crane to tilt to the nearside and topple over down the verge.

In his oral evidence, Mr. Lawrence stated that the crane involved was brought into the claimant’s fleet in 2011 and he was trained upon it on 14^th December of 2011. He thought that he had driven this crane about thirty times before the accident, but of all the cranes he drove for the claimant, this was the one on which he was least experienced. He said that he had not noticed the blue sign near to the southern end of Woodeaton Road which stated “Unsuitable for HGVs”. He said that if he had seen that sign he would have pulled over and referred to his employers. He accepted that, because of the weight of his vehicle, there should have been a notification to the authorities of the route it was going to take.

With regard to the accident, he said that as he came through the road works section, he saw the white van with its nose just on the white line, slightly at an angle. The van then moved back but the gap was still tight for him. He said as he went onto the southbound lane he was focussing on the white van but also to his left. He said, “We never go onto a soft verge because of the consequences.” He said that he was focussing on the right and he slowed right down because the gap was so narrow past the white van. He accepted that he may have driven onto the verge. He said, “I can’t say that I didn’t drive off the carriageway onto the verge.” This was because he was focussing on the van to his right but he said he was keeping the vehicle as straight as possible. He said that he had not actually seen the carriageway collapse beneath the crane’s wheels but that is what he felt. He said that he was using the mirror on his right to concentrate on the van but he judged that he was not going off the carriageway because the crane was straight.

In his first witness statement, Mr. Martin New, the claimant’s group operations manager, described how he was informed of the accident on 16^th July 2012 and immediately drove to the scene. He said that he noticed that Woodeaton Road was in a very poor state and there were numerous cracks visible in the road surface apart from the edge of the road which had collapsed. He thought that the road surface looked quite thin. He went on to describe how the first attempt to recover the crane had to be aborted and the steps that were eventually taken to recover it from the brook. He said that he undertook a full investigation into the circumstances of the accident and was satisfied that there was no wrongdoing on the part of the crane driver, and that the accident had occurred due to the poor quality of Woodeaton Road. He mentioned that he had had a conversation with Mr. Vidovic of the council on 25^th July 2012. He claimed that Mr. Vidovic had apologised for the accident and advised that the council had been aware of the structural damage to Woodeaton Road for some time.

Mr. New’s second witness statement was made in response to Mr. Vidovic’s account in his witness statement regarding the conversation he had with Mr. New about the accident, in which Mr. Vidovic asserted that Mr. New told him that the crane driver drove onto the verge to manoeuvre round an incorrectly positioned oncoming vehicle at the traffic lights and felt the verge give way. Mr. New maintained that he told Mr. Vidovic that the crane driver drove close to the edge of the tarmac when passing the stationary vehicle and the edge of the road gave way under the weight of the crane, causing the crane to fall onto the verge and tip over. Mr. New went on to say in this second witness statement that his observations at the scene were that the accident occurred because the edge of the carriageway collapsed, not because the driver drove onto the grass verge.

In his oral evidence, Mr. New was questioned about whether the authorities had been notified of the crane’s journey proposed for the day of the accident. He maintained that the claimant had blanket orders in place for various motorways and that the claimant’s transport division would have made a phone call to notify the authorities in advance of the crane’s journey and obtained a movement order.

Mr. New was also questioned about the report which he prepared on 25^th July 2012 regarding his investigation of the accident. He referred to conversations he had had at the accident site with the police, fire services, farmers, the council and the council’s contractors, and the general public. He said such persons had expressed concern for a long time about the stretch of road in question and as to whether it should have been closed pending the repair work. He also referred to his conversation on 25^th July with Mr. Vidovic, who he claimed said the council had been well aware for a long time of the structural damage on the road. Mr. New then stated as follows towards the end of this report: “In my opinion the action of our driver was unavoidable due to the set up of the road and the condition it was in.” He accepted that nowhere in his report had he mentioned that the road had collapsed. He denied that he had ever told Mr. Vidovic that the crane driver had driven onto the verge. He claimed that so far as he was concerned the photos which he took proved that the driver did not drive off the road.

In the witness statement of Michael Dickerson, the highway inspector, he stated that he had worked for the council for approximately fourteen years. He is very familiar with Woodeaton Road, it being one of the roads he regularly inspects. He stated that he had always been particularly conscious of any potential issues on this road because of the risk presented by the unguarded brook running alongside it. He conducted three monthly driven inspections of the road and recorded any defects in a road inspection record. The detail provided in that record appears somewhat limited. In addition to this regular three monthly inspections, Mr. Dickerson said he also conducted informal inspections when travelling on that road generally. When conducting his inspections he would be looking for potential safety defects such as potholes or the requirements for works such as edge patching. On 10^th January 2012 he noted signs of verge erosion at one particular point and on 12^th January he raised it as a category 3 non-safety defect. The following day he visited the site of the erosion with Mr. Burgess, a senior technician. He conducted further formal driven inspections of Woodeaton Road on 3^rd April and 10^th July 2012, but did not notice any further issues of concern. A further witness statement from Mr. Dickerson confirmed that his three monthly driven inspections were as part of a two man team whereby he would be driven in the vehicle as he inspected the roads. Of course, I bear in mind when considering Mr. Dickerson’s statements that he was not available to be cross-examined regarding his inspections of Woodeaton Road.

In his witness statement, Mr. Burgess confirmed that he had been a senior technician in the council’s highways team for over ten years. He was familiar with Woodeaton Road. In the summer of 2011, in connection with the surface dressing of Woodeaton Road, he walked the full extent of the road and did not identify any issues of concern. He related how Mr. Dickerson on 12^th January 2012 reported to him the section of the road where the verge was being eroded by the brook. They visited the site the next day and he arranged to make the area safe with a high visibility protective fence. He then liaised with his line manager in relation to appropriate works to be undertaken to the stretch of verge in question. On 17^th February 2012 he visited the site again and noted that approximately 15-20 metres of verge had slipped down towards the brook. He arranged for the traffic light system to be installed to keep traffic away from the affected area of verge. On 21^st February the traffic management system was checked and on the next day he arranged for water-filled barriers to be installed. The traffic management system continued to be checked on a regular basis. By 24^th April 2012 it was confirmed that the council’s bridges team would fund and undertake the necessary repairs to the section of verge in question.

Mr. Burgess said that when he arranged for the installation of the traffic lights on 17^th February 2012, he conducted a walked inspection of the verge to ensure that the traffic lights were placed appropriately and as extensively as necessary. This inspection involved walking from the section of eroded verge along Woodeaton Road to the junction with Elsfield Road. Accordingly, this walked inspection included inspection of the site of the subsequent accident involving the crane. Mr. Burgess confirmed that he had no concerns in relation to the stability of the verge at any point other than that which had already been noted.

When he was cross-examined, Mr. Burgess agreed that, on his inspection of the eroded verge on 13^th January 2012, he did not produce a formal inspection record but made a diary entry. He was questioned about the email which he sent to his line manager on 16^th January 2012 in relation to this eroded section of verge. He stated that in his opinion it was potentially highly dangerous. He said a problem had existed there for a number of years and he thought that gabions or perhaps sheet piling would be required to stabilise the bank. He referred to the cones and mesh fencing which had been erected to make the site safe but considered that some steps must be taken sooner rather than later. He stated, “If any vehicle was to put a wheel off the carriageway it would end up in the water filled brook possibly upside down.” He thought that some sort of physical barrier was required but there was no verge in which either barrier or marker posts could be located. Kerbs which had been there previously had now slipped into the brook in the worst section. Mr. Burgess agreed in cross-examination that, at the location of the crane accident, there was no reinforcement to prevent the verge slipping or eroding or any structure between the edge of the brook and the road to prevent a vehicle coming off the road and ending up in the brook. He said that at the accident location the verge was narrow but was wider than at the section of erosion which he measured as some 65 metres north of the accident location. He asserted that he did not believe that at the accident location anything should have been done to make it safer. In relation to points on the road where kerbs had previously been installed at the edge of the road, he agreed that they would have served to reinforce the edge of the carriageway to a degree to prevent vehicles going onto the verge. There were no kerbs at the accident location. He agreed that one point of barriers or marker posts at the edge of the road would be to prevent vehicles going onto the verge.

Mr. Burgess maintained that he had made safe the section where the verge had slipped by putting in the traffic lights and the additional barriers and signage. He was unaware of any assessment being carried out of the verge and the brook at the accident location. He maintained there was no reason why edge markings should have been put on the road at the accident location prior to July 2012 because there was no need to do so as the road was straight and the edge was clearly defined by the grass verge. Equally, he considered traffic cones were not required on the edge of the road at the accident location. He thought it would have been very difficult to install marker posts at that location, although it may have been possible. He agreed that, after the further slippage of verge into the brook in February 2012, he had sent an email to his superiors stating that he felt it would not be long before the carriageway was undermined at that point.

Whilst Mr. Burgess agreed there was no documentary record of his inspection on 17^th February 2012, he firmly stated that, had he seen any signs of slippage or erosion at any other point, he would have done something about it as he is a cautious type of person. He disagreed that that inspection was not an adequate safety inspection, saying that he was looking for structural defects and he saw none at any other location. Mr. Burgess stated that the traffic management system was regularly inspected by the contractors and he had advised further signage, namely information signs stating “Traffic lights here to protect undermined verge”. He said that if he had seen at the exit from the road works section at the accident location that vehicles were going onto the verge on the east side of the road, he would have arranged for the situation to be addressed, possibly with cones or barriers. However, he said that situation never arose as he did not see vehicles driving onto the verge there. He accepted that there was photographic evidence of vehicles going on the verge on the west side of the road (not the brook side) at the southern end of the road works section. He accepted that the council took no steps to warn vehicles not to drive on the verge or the very edge of the carriageway at the southern end of the road works, or took any steps to stop vehicles doing that. Following the accident, Mr. Burgess maintains that he was told by someone from the Environment Agency that the crane had driven onto the verge and that is what he recorded in his diary. He said he was categorically not told that the road had broken away at the accident site. Although in April 2012 there had been some suggestion by the bridges section that, as there was no structural damage, the traffic light system could be removed, this was not done because Mr. Burgess felt there was a safety issue and the council’s New Roads and Streetworks Act section agreed with him.

Mr. Vidovic in his witness statement confirmed that he was a senior engineer in the council’s bridges team and had spent approximately nine years in the highways team and seven years in the bridges team. He has an honours degree in civil engineering. He visited the site of the verge erosion and slippage on a number of occasions, the first being 29^th February 2012. On that date he attended to inspect and consider the potential works necessary. He decided that the construction of a retained structure would be necessary at that section of verge. He also took steps to ascertain whether any other areas of verge would benefit from structural works. During March and into April 2012, he inspected the length of Woodeaton Road where the brook meets the verge. He did this both by walking along the road and by wading into the brook itself, closely to inspect the verge and previous retaining features. Whilst he carefully inspected the full extent of Woodeaton Road, he paid particular attention to those points at which the verge was narrower. He did not identify any areas of verge requiring immediate attention, save for the section already identified in January 2012. However, he did identify three further areas towards the north end of Woodeaton Road which he deemed may require work within a few years and in the interests of saving costs he decided to include those three other areas in his planned scope of works.

He stressed that he had inspected the stretch of verge where the crane subsequently fell into the brook and said he had no concerns whatsoever as to the stability of the verge at that point. He said that that was one of the wider areas of verge along Woodeaton Road and thus less subject to the risk of erosion by the water in the brook.

He then described how he was responsible for surveying and drawing up the scope of the works on Woodeaton Road. Two months’ notice had to be given to the Environment Agency because the works were by a water course. Woodeaton Road was due to be closed on the morning of 17^th July 2012 for the works to commence.

Following the crane accident on 16^th July, Mr. Vidovic attended at the location on the next day. He said he spoke to Mr. New, who told him that the driver of an oncoming vehicle was incorrectly positioned at the traffic lights, forcing the crane driver to drive up onto the verge to manoeuvre around the vehicle. He said that as the crane was driving slowly on the verge he felt it give way and the vehicle started to slip. Mr. Vidovic said he noted tyre marks where the crane had left the carriageway and driven for approximately 5 metres along the verge before toppling into the brook.

When he was cross-examined, Mr. Vidovic said that he would have made notes at his inspections of Woodeaton Road for the purposes of the design of the works to be done and his notes would have been assimilated into the design. He agreed that he had not carried out any tests of the carriageway or verge at the site where the accident occurred. He maintained that the carriageway was sound. He strongly disagreed with Mr. New’s account of the conversation on the day after the accident. He said that Mr. New’s version was “absolutely incorrect”. He also disagreed with Mr. New’s note of the conversation they had on 25^th July 2012, and in particular that he had said that the council had been well aware for a long time of the structural damage on that road. Mr. Vidovic said that every time he spoke to Mr. New, he came across as quite agitated and difficult to talk to.

Mr. Vidovic was referred to an email which stated that the records showed there had been no reported accidents on the relevant section of Woodeaton Road in the last five years. Prior to that, there had been two accidents very close to the Elsfield Road junction. Mr. Vidovic said that on the basis of the accident statistics it was not necessary to have barriers erected along Woodeaton Road adjacent to the brook. Mr. Vidovic, in answer to a question from me, stated firmly that, on his inspection of the verges prior to the accident, if he had seen any sign of subsidence or instability at the accident site, he would have put in a recommendation for works there. His assessment of the accident site following the accident was that the crane had so damaged the verge in the accident that it was necessary to put a structure there at the same time as the works on the other sections which he had identified.

I now turn to the expert evidence in the case. The claimant’s accident reconstruction expert, Mr. Mottram, in his report dated 10^th July 2015, included photographs of the accident scene and the overturned crane in the brook, as well as photographs from Google streetview taken in May 2012, showing the layout of the road works on Woodeaton Road and the section of the road where the accident occurred. There were also photographs of the sections of verge including the accident site where strengthening works were subsequently carried out, and other sections of verge adjacent to the brook where kerbstones or a concrete parapet or cap had been positioned in the past. Of particular interest on the photographs of the accident scene are tyre marks about 5 metres long on the verge immediately adjacent to the edge of the carriageway and a section of the edge of the road which was broken and approximately in line with the rear nearside wheel of the overturned crane. Mr. Mottram said that some of the photographs show that there are fissures in the road surface at the east side of the road just north of where the crane came to rest.

Mr. Mottram stated that there was plenty of space between the south end of the coned off area and the south traffic signals to allow the crane driver to change lanes without turning the crane sharply or along a tight curved path. He said he had about 22 metres in which to manoeuvre. Because the width of the southbound lane on Woodeaton Road in that area was approximately 2.6 metres and the width of the crane between the outer edges of its front tyres was approximately 2.5 metres, in order to pass the south traffic signals it would not have been necessary for Mr. Lawrence to drive onto the east verge. Putting it another way, there would have been sufficient space for the crane to stay on the road. Mr. Mottram expressed the opinion that, by the time the overturning process had started, the crane was no longer turning left or right and was realigned with the southbound lane. He thought that the front nearside wheel and tyre descending would have been the event that triggered the overturning process. He said that in theory the descent of the front nearside wheel and tyre could have been caused by the east edge of the road collapsing as described by Mr. Lawrence. Alternatively, it could have been caused by the tyre running off the intact edge of the road and going onto the relatively soft verge which then collapsed. Thus he said, putting aside the physical evidence, it is plausible for either circumstance to have started the overturning process. If the edge of the road did collapse underneath the front nearside tyre, Mr. Mottram said it is plausible for the tyre and effectively the whole of the front of the crane to have then moved or been displaced sideways towards the left. In that circumstance, with the crane continuing to move forward, its centre nearside and rear nearside tyres would then have run off the edge of the road at a shallow angle and onto the verge. He suggested that that process could account for the existence of the tyre marks on the verge. He said that the verge at that location was incapable of supporting the weight of the nearside of the crane. Thus he considered that the tyre marks on the verge could have been caused either by the side of the road collapsing under the front nearside tyre, or by the crane being driven onto the verge.

Mr. Mottram said that he could not answer the question of whether the east edge of the road and/or the grass verge was unstable at the accident location. He made reference to the fact that record rainfall occurred in England in April to July 2012 and that the months of April and June were individually the wettest since records began in 1910. He also noted that Woodeaton Road was in a flood zone. He said that these factors indicated that the risk of the brook eroding the east verge and potentially destabilising the east edge of the road before the accident was high.

When he was cross-examined, Mr. Mottram said that he did not know that Mr. Lawrence was focussing so much to his right, as he had said in his evidence. Mr. Mottram agreed that Mr. Lawrence’s view to the right was not as good as to the left. He also agreed that at the accident site there is a right hand curve coming out of the road works area, but that he assumed when Mr. Lawrence said he drove straight that he meant he was following the course of the road. He conceded that there was no physical evidence to help him say whether the driver drove off the road or the road collapsed. He thought it was possible that there was an edge defect there already, or that the road collapsed and the defect occurred, causing the crane’s front nearside wheel to drop with a sideways movement. He said if that occurred, there would not be any evidence of the sideways movement in the tyre marks. Although the load distribution on the crane was towards its rear, this did not mean that if the road collapsed under the front wheel the crane would stay on the road. The dropping of the front wheel would give rise to the steering being twitched, causing the crane to move sideways. He accepted that the driver’s perception would have been the same if the road collapsed or if he drove the front wheel off the road. He accepted that the verge at the accident location was about twice as wide as where the section of verge had slipped in February 2012. He further conceded that at the accident location there was not a high risk of erosion, but there was a risk of heavy vehicles overturning because the verge was soft. He accepted that he did not observe significant erosion at the accident location. So far as the tyre marks said to be attributable to the crane were concerned, he said that the possibility they were from another vehicle was the least likely position. He agreed that the crane driver was high up and would have been able to see the water in the brook. Because of the total weight of the crane it was inevitable that, if it went on the verge, the verge would give way. Any heavy goods vehicle or large van going onto the verge was at risk of toppling over at the accident location.

The defendant’s expert, Mr. Hill, in his report dated 8^th March 2016, stressed that he was a civil engineer specialising in investigation of defects to highways and that he was not a road traffic investigator. Mr. Hill summarised his conclusions at the beginning of the report. He said that he thought that the accident probably took place when the crane was misdirected across the verge, saying that the tyre tracks indicate that the vehicle was driven in a straight line forwards onto the verge, whereas they should have been turned to the right, thereby remaining on the road surface and following the curvature of the road. He stated that the photographs strongly suggest all the tyres on the left side of the crane were on the verge which was soft and compressible and unable to support the weight of the vehicle. He said there is nothing to suggest that the surfacing at the end of the road was previously in a poor condition. On balance he thought that the edge of the road became damaged when the adjacent wheel of the crane, which was on the verge and hard against the edge of the surfacing, rotated during the topple, pushing up the section of road seen to be damaged in the photographs. It was also possible but less likely that the damage occurred when the wheels of the crane were positioned right at the edge of the carriageway and the wheels lost their support at the edge. The driver may have tried unsuccessfully to steer back onto the carriageway, thus damaging the edge of the surfacing. The road was formed from a relatively thin bituminous material which would be unlikely to be able to accept a very substantial load or a heavy vehicle driven very close to or over the edge.

In the body of his report, by reference to the photographs, Mr. Hill said that what appeared to be the tyre marks made by the left hand tyres of the crane are directed straight towards the camera, whereas the road veers to the left of the camera, i.e. to the right in the direction taken by the vehicle. He said that the edge of the road appears to be reasonable save for the damaged section referred to above. In considering whether that damage was caused by the crane being driven off the road or whether it represented a partial collapse of the road when the crane was driven along it, he said that he thought it probable that the damage was the result of the accident rather than being the cause of it. This is because, in his view, on an engineering basis, the road was probably in good condition before the accident with little or no damage. The evidence strongly suggests, he said, that the tyres were directed in a straight line at the edge of the road onto the verge which became damaged as a result of the significant size and dynamic nature of the imposed weight of the crane. In relation to the edge damage he thought that this was most easily explained by the rear wheel rotating as the crane toppled when it was abutted against the edge of the road. The absence of damage elsewhere and the fact that the road had recently been inspected with no relevant defects identified lends weight to this assertion. Even if the tyres were at the edge of the road (which the photographic evidence suggests is unlikely), he thought it likely that the damage increased when the tyres were already at the edge and then overhanging the edge of the surface. All the photographs appear to support the contention, he said, that the road was (excepting damage caused by the accident) in a reasonable condition. It was probable the very heavy weight imposed by the crane wheels in the verge resulted in the crane tilting and there was a possibility that some of the damage to the edge of the road was caused by the driver trying to turn the wheel and correct this movement. If the driver had driven the crane such that it was directed around the curve to the right rather than being driven in a straight line, then the road surface would have remained intact and the wheels would have been fully supported by the bituminous surface.

Mr. Hill said that in his view it was clearly foreseeable that a substantially sized heavy vehicle which is driven at or close to the edge of a rural road or off the road may lead to some damage. It would therefore be good practice for a driver to direct a heavy vehicle away from the road edge. He said it would clearly have assisted had there been greater delineation of the edge of the carriageway but because Mr. Lawrence was aware of the existence of the soft verge he wondered how much difference the presence of cones or a white line may have made. He suspected it would have made little difference. He did not believe that the road works themselves or the traffic management measures that were undertaken were causative of or contributory to the accident.

When cross-examined, Mr. Hill reiterated the views expressed in his report. He considered that it was unlikely there was any degree of lateral movement of the crane when the front nearside wheel descended, because all the other five tyres and the load that they took would be on the road. He maintained his view that the edge damage on the road was caused in the accident by a tyre of the crane when it toppled over. He accepted that, if the front wheel went down due to the collapse of the road, the tyre marks on the verge would be consistent with that if the vehicle was moving forwards. However, he said the evidence suggests most strongly that the vehicle was driven off the road. He accepted that a clearer delineation of the edge of the carriageway gives a better indication of where the verge starts and that there were a number of ways of providing greater delineation by cats’ eyes, white lines or marker posts at the side of the road. As to which of the wheels of the crane caused the damage to the edge of the road according to his opinion, he said it was not impossible that it was the middle wheel rather than the rear if the crane was moving forwards. It was also possible that that damage was caused with the wheel still partially on the carriageway to a small degree.

After Mr. Hill had concluded his oral evidence, Mr. Mottram was recalled and he said he disagreed with Mr. Hill’s theory as to how the damage to the edge was caused because he said that, even if a rear wheel was in contact with the road when the crane toppled over, it would not cause the defect because the crane would have toppled away from the road.

Mr. Mottram and Mr. Hill had also prepared a joint statement dated 24^th March 2016. In that document, Mr. Hill stated that he considered there to be strong evidence that the accident occurred because the crane was driven off the road rather than because part of the edge of the road collapsed. Mr. Mottram said he considered that it could not be established from the available physical evidence which of these two possible circumstances occurred, nor which is most likely to have occurred. Mr. Hill stated that it would have been obvious to a competent crane driver that the verge was not capable of supporting the substantial weight of the crane, whereas Mr. Mottram said it was for the court to decide the facts relating to a driver’s competence. Each expert again reiterated his view as to the cause of the damage at the edge of the road. Mr. Hill again expressed the view that, if there had been a lateral movement of the crane as postulated by Mr. Mottram, he would have expected to see evidence of this. Whilst he agreed that the undermining of the verge and the rotation of the rear wheel would be unlikely to cause the edge of road damage, the evidence suggested that that is in fact what took place.

The claimant’s highways inspection and maintenance expert, Mr. Widdowson, at the outset of his report dated 26^th January 2016, stated that he had been instructed to address six particular questions. The questions included what inspection and maintenance obligations did the council have in respect of Woodeaton Road and were those discharged? A further question was, “After the road collapsed in January 2012 what investigations and inspections should have been undertaken?” Of course, this is incorrect because the road had not collapsed in January 2012. There had been some erosion of the verge at the section in question and a subsequent slippage of part of that verge into the brook. In his discussion of Woodeaton Road in his report, Mr. Widdowson suggested that the road carried an unusually high volume of traffic, including seasonal local farm traffic. He said the proximity of the brook suggested that the road sometimes floods due to the high water level in the brook. He suggested that it was likely that the lack of kerbs and positive highway drainage resulted in ponding of water surface at low points in the vertical alignment of the carriageway. In his view those issues may have contributed to the instability of the verges due to the ingress of water. He concluded that the road is in a high risk area as it had a long history of severe flooding which had resulted in erosion and instability of the east verge of the road and undermining of the edge of the carriageway. It is not clear on what basis Mr. Widdowson reached this conclusion, or from where he derived the information that the road had a long history of severe flooding. Because of his conclusion that the road was in a high risk area, he suggested that there should have been monthly inspections of the road on foot. He also said additional inspections should have been carried out after periods of prolonged inclement weather.

Mr. Widdowson was also most critical of the lack of detailed documentation relating to the inspection of the road. He therefore concluded that the council had failed to demonstrate that it carried out inspections, recorded defects and repaired the highway in accordance with its policy for highway safety inspections. It was his view that the council had failed to identify the full extent of the erosion and deterioration of the verge on the east side of Woodeaton Road and failed to implement adequate remedial measures such as reinstatement of kerbs that had slipped into the brook, and the reconstruction of the verges to a standard that would withstand the erosion effects of the adjacent fast flowing brook. Therefore he concluded that the council was in breach of its statutory duty under Section 41 of the Highways Act, 1980. He claimed that the council had been aware of the dangers associated with the fast flowing brook and of the potential for instability of the highway verge and the edge of the carriageway for a very long time. He said that the council had failed to demonstrate that it had exercised a reasonable duty of care in considering appropriate traffic and safety measures to ensure that the highway was safe for all road users and that drivers were informed of the potential dangers associated with the substandard carriageway and verge widths, weak carriageway edges and soft verges in close proximity to an unprotected fast flowing brook. He suggested that a continuous white line should have been marked at the carriageway edge or hazard markers placed in the verge or warning signs displayed.

He suggested that the council had not by documentation demonstrated that it had properly investigated the full extent of the verge erosion on Woodeaton Road. Mr. Widdowson asserted that the council did not act reasonably and efficiently in inspecting the site, investigating areas of verge and carriageway edge instability and planning, programming and commencing repair works. Again, he was critical of the lack of documentation from the council regarding this or of any inspections following periods of heavy rainfall such as those recorded in May and June 2012. He was further critical of the layout of the traffic management system. He said in his view that, as a minimum, cones and warning amber lights should have been provided along the eastern verge at the termination of the section subject to traffic signal control. There should have been an assessment of the path of long/wide/heavy southbound vehicles manoeuvring back onto the southbound lane.

When he was cross-examined, Mr. Widdowson was the subject of considerable criticism with regard to the contents of his report. He accepted that he was not aware of the court order in relation to the provision of his report which was limited to particular issues and did not raise the six questions posed at the beginning of his report. He also accepted that his starting point that there had been a road collapse in January 2012 was wrong because the road did not collapse, it was part of the verge which collapsed. He was challenged about his assessment that there was an unusually high volume of traffic on Woodeaton Road and it was put to him that the vehicle count report carried out on the road in June 2012 at no time exceeded 400 vehicles per hour. It was pointed out to him that, in the Traffic Signs Manual 2009, a road was classified as a minor road if the traffic flows are less than 400 vehicles per hour of which less than 5% are heavy vehicles. Mr. Widdowson accepted that he had never visited the road but the impression he had been given by a report prepared for the insurers of the claimant led him to say that there was an unusually high volume of traffic. He accepted that, if he was wrong about this, then one of the limbs of his argument, that this was a high risk road, fell away. He agreed that another reason for him having concluded that it was a high risk road was because he thought there was a long history of severe flooding on it. He said he had read into one of the emails from Mr. Burgess an implication that the road had a history of flooding. He had to accept that if there was not such a history, then another of his factors for finding it was a high risk road fell away. He accepted that he had not mentioned anything about accident data in his report and that would have been another material factor regarding whether the road was a high risk road or not. Despite these apparent errors or omissions in his report, he still maintained in the witness box that Woodeaton Road was a high risk road.

He also argued that, in connection with the proposed road works, a construction design and management coordinator was required under the relevant regulations. He accepted that the code of practice for safety of street works and road works provided that compliance with the code would be taken as compliance with the legal requirements to which it relates.

Mr. Hopwood, the defendant’s highways expert, in his report dated 29^th January 2016, stated that Woodeaton Road carried approximately 6.5% of the amount of traffic that was carried by the adjacent A40 trunk road. He said that the council’s hierarchy for the inspection of roads was linked to the national code. He thought that, if anything, the council had perhaps over classified Woodeaton Road. Although in the council’s policy document verge erosion was not mentioned as a specific item to inspect, Mr. Dickerson was clearly inspecting verges because he identified the problem in January 2012. He noted that the inspections should take place from a slow moving vehicle with a team of an inspector and a driver. It was his view that Woodeaton Road came within a classification under the national code which would require three monthly inspections, as indeed took place. In the opinion of Mr. Hopwood, Woodeaton Road did not merit inspections any more frequently than every three months and the method of inspection was appropriate. It was his opinion that, because of potential problems with the verge on Woodeaton Road, it was important that the council was in fact doing more than just normal safety inspections. He agreed that it would have been better if the council had a more documented approach, but this was not uncommon with highway authorities. In any event, he considered this was irrelevant because between January 2012 and the accident in July 2012, the road and the brook had been subject to a seemingly thorough inspection by a structural specialist, with no problem identified at the accident location.

Mr. Hopwood said that in reality Woodeaton Road is just a rural unclassified road with relatively low usage and therefore did not require a more structured and documented approach which would be necessary with a well used classified road where there was a high risk of vehicles leaving the road surface. In addition, Mr. Hopwood stressed the fact that there was no evidence of any accident history along Woodeaton Road and certainly no evidence of vehicles’ incursion into the brook. In his experience and opinion, Mr. Hopwood considered that the council could not be criticised for its overall approach to Woodeaton Road and he was confident that that was the same approach that would have been taken by most UK highway authorities to a road such as Woodeaton Road.

Mr. Hopwood had no concerns with the council’s response to the situation of the verge slippage. He thought appropriate measures were taken to keep vehicles away from that section of road. He was not critical of the delay which had occurred before the works were going to be carried out, bearing in mind the necessity for liaison with the environment authority. He also thought that the traffic management system in place was appropriate and followed the Department of Transport code of practice.

In his supplementary report dated 15^th March 2016, Mr. Hopwood responded to points raised in Mr. Widdowson’s report which he had not been required to deal with in his first report. Whilst he agreed that there was exceptional rainfall in June 2012, his analysis was that the rainfall was sustained rather than intensive. Thus he considered that the risk of flood damage would have been no higher than during any other month. Therefore he did not consider that there was any necessity for the council to take any particular action as a result of the rainfall.

In his oral evidence, Mr. Hopwood considered that there was no higher risk of flooding on Woodeaton Road than any other road with a water course running alongside it. Mr. Hopwood agreed that he had no documentary evidence from the council indicating that verge erosion should be taken into account on inspections of the highway. He also accepted that he had seen no documentary evidence as to whether Mr. Dickerson inspected any other part of the road for erosion apart from what he said in his witness statement. He said there were no hard and fast rules as to whether or not white edge lines should be painted on a carriageway. He said that if a location had a history of accidents or it was an accident blackspot, then road edge markings might be appropriate. He accepted that barriers or marker posts would warn vehicles not to go to the very edge of the carriageway. He did not accept that the absence of barriers or marker posts at the accident location meant that there should be greater inspection of the road. He pointed out that 90% of roads do not have barriers or marker posts. He said that it is common sense that every verge is soft and he would not expect warning signs everywhere where there is a grass verge adjacent to a road. He said roads with water courses alongside are common and roads with verges are very, very common. He maintained his view that Mr. Dickerson was doing more than normal safety inspections because he was aware of the risks of the brook, and indeed identified an issue when a verge was eroded.

With regard to traffic flows on the road, he accepted that there was no data prior to the traffic count in June 2012, when the traffic light managed system was in place. He also accepted with regard to the accident records that normally accidents involving persons killed or seriously injured would be reported, although the police could record other accidents if they saw fit. In response to the suggestion that Woodeaton Road should have been inspected monthly, he said that no highway authority does monthly inspections of rural unclassified roads and he would be very, very surprised if a highway authority did monthly inspections of such a road. He accepted that, if there was a foreseeable risk that, at the accident location, very heavy vehicles might go onto the verge and it would collapse, an option would have been to close the road or extend the traffic management system right up to the junction with Elsfield Road. He accepted another option might have been to prohibit heavy goods vehicles from the road, but that that would be difficult to enforce if vehicles required local access.

In the joint statement of Mr. Widdowson and Mr. Hopwood, they set out the differences in their views. Mr. Hopwood said that he failed to see how the lack of detailed documentation relating to the highway inspections had any bearing on the accident in question. The highway inspections of Woodeaton Road had discovered the problem with the verge and in any event that was at a different point from the accident. Again, there was firm disagreement between the experts as to whether the road was a high risk road. Mr. Hopwood thought that Mr. Widdowson’s opinions as to what the council should have done were idealistic and unrealistic. Mr. Hopwood was surprised that Mr. Widdowson thought that a construction design and management coordinator was required in connection with the proposed road works. He said the role of such a coordinator related to safety when construction work was being designed and undertaken. Mr. Hopwood considered that, particularly by reason of Mr. Vidovic’s inspection, the edge of the road was not weakened and undermined as suggested by Mr. Widdowson in his report. In any event, the experts Mr. Mottram and Mr. Hill had agreed that the verge would never have been able to sustain the weight of the crane irrespective of the pre-accident condition of the verge. Contrary to what Mr. Widdowson suggested, Mr. Hopwood did not consider that temporary steps such as barriers, cones, warning signs or edge of carriageway road markings were necessary at the accident location.

Section 41(1) of the Highways Act, 1980, provides:

“The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to sub-sections (2) and (4) below, to maintain the highway.”

Under Section 329(1) of the Act it is provided that “maintenance” includes repair and that “maintain” and “maintainable” are to be construed accordingly. Section 58(1) of the Act provides that:

“In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”

Under Section 58(2) for the purposes of a defence under Section 58(1), the court has to have regard in particular to the following matters:

“(a)

the character of the highway and the traffic which was reasonably to be expected to use it; (b) the standard of maintenance appropriate for a highway of that character and used by such traffic; (c) the state of repair in which a reasonable person would have expected to find the highway; (d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway; (e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed.”

Over the years, in a number of reported cases, the nature of the duty under Section 41 and of the defence under Section 58 in the 1980 Act or similar earlier legislation has been considered.

It is clear that the duty under Section 41 is an absolute duty. It is a duty not merely to take reasonable care, but to maintain the highway to an objective standard. As was stated by Lord Clyde in Goodes -v- East Sussex CC [2000] 1 WLR 1356 at 1368:

“…I have no difficulty in holding that Section 41 of the Highways Act, 1980 imposes an absolute duty on the highway authority. There is no hardship in so holding since the section has to be taken along with Section 58 which provides a defence that reasonable care has been taken by the authority. The scheme of the provisions is in its broad effect that the authority should be liable for damage caused by a failure to take reasonable care to maintain the highway, but the injured party is not required to prove the failure to take reasonable care. It is for the authority to prove that it has exercised all reasonable care. Such a reversal of the onus which would have been imposed on a plaintiff in an action for damages at common law is justifiable by the consideration that the plaintiff is not likely to know or be able to readily to ascertain in what respects the authority has failed in its duty. All that the plaintiff will know is that there is a defect in the road which has caused him injury and it is reasonable to impose on the authority the burden of explaining that they had exercised all reasonable care and should not be found liable. But the question in the case is precisely what is the meaning and scope of the absolute duty. … Maintenance certainly includes the work of repair and the taking of measures which will obviate the need to repair, to forestall the development of a defect in the road which will, if allowed to develop, require remedial action. The standard of maintenance is to be measured by considerations of safety. The obligation is to maintain the road so that it is safe for the passage of those entitled to use it. But the question still remains as to precisely what is the scope of that maintenance. It certainly requires that the highway be kept in a structurally sound condition. … To use the words of Diplock, L.J. in Burnside -v- Emerson [1968] 1 WLR 1490 … the obligation is to keep the highway ‘in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.’”

It is clear that a road verge may be part of the highway. Thus, in Russell -v- West Sussex Council [2010] EWCA CIV 71, it was held that the difference in height of six inches between the road surface and a grass verge was a potential hazard to users of the road and presented a danger, such that the defendant was in breach of its duty under Section 41 of the 1980 Act. Reference was also made in that case to the judgment of Sachs, L.J. in Rider -v- Rider [1973] RTR 178, where he said that the statutory duty was:

“reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them … Motorists who thus use the highway, and to whom a duty is owed, are not expected by the authority all to be model drivers. … The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make mistakes which experience and common sense teaches are likely to occur.”

Whilst it is clear that road verges may constitute part of the highway, it must be the case that a different standard will normally apply to verges as opposed to the carriageway itself. Thus, in Kind -v- Newcastle-upon-Tyne Council [2001] EWHC Admin 616, it was held that the fact that the verges on the road in question were not suitable for the passage of all traffic did not equate to a finding that the road was in a state of disrepair. Scott Baker, J. said:

“There is in my judgment no inconsistency between the finding that Prestwick Carr is in a reasonable state of repair to serve the ordinary traffic using it, and the finding that the verges are not suitable for all traffic to pass along. The mere presence of verges, because they form part of the highway, does not require the highway authority as part of its maintenance obligation to extend the metal carriageway over them.”

In the case of Thompson -v- Hampshire CC [2004] EWCA CIV 1016, which concerned an accident in which a pedestrian fell from a verge (for which the authority was responsible) into a nearby ditch, it was said by Rix, L.J.:

“One can see that in one sense this case concerned the structural surface of the highway, for in the relevant area of the path the surface of the verge fell away into a ditch. However, the ditch was part of the contour of the land, even if the highway did extend over the verge up to the fence. To say that such a ditch needed to be filled in or covered over so as to even out the surface of the verge would be tantamount to saying that all verge ditches would have to be similarly addressed as a matter of the statutory duty to maintain the surface of the highway. However that would be going hugely beyond an authority’s previously understood duty.”

It is also clear from the case of Gorringe -v- Calderdale MBC [2004] 1 WLR 1057 that the duty imposed by Section 41 of the 1980 Act was not capable of including the provision of information or warnings by way of street furniture or painted signs.

It is also important to note that it must be established that the particular location where the accident occurred had a defect which was dangerous. (See James -v- Preseli Pembrokeshire District Council [1993] PIQR P114).

I first have to consider, having regard to the case law, whether the claimant has proved that there was a defect on the highway at the location of the accident which rendered the highway dangerous to traffic so that the defendant was in breach of Section 41 of the Highways Act, 1980. It is the claimant’s primary case that the carriageway was in a weak and defective state near to its edge so that it cracked and collapsed under the weight of the crane. Clearly, the question of whether or not there was such a defect is closely linked to the issue of how the accident occurred. Having carefully considered all of the evidence, I have reached the conclusion that, on a balance of probabilities, the accident occurred because the crane driver, Mr. Lawrence, drove the crane off the carriageway onto the grass verge. In my judgment, there are a number of factors which support this conclusion. The claimant’s expert, Mr. Mottram, felt unable to say on the basis of the physical evidence whether the accident occurred because the edge of the road collapsed, or because the driver drove onto the verge which then collapsed. The defendant’s expert, Mr. Hill, considered that there was strong evidence that the accident happened because the nearside wheels of the crane were driven off the carriageway onto the verge, which then collapsed. In my judgment, the photographic evidence of the accident location very much supports that conclusion. There are clear tyre marks for a distance of about 5 metres on the verge which I find were made by the crane and which are more consistent with the crane being driven onto the verge than it slipping sideways onto the verge because of a collapse of the road surface. Such sideways movement, in my judgment, is unlikely, bearing in mind that if the front nearside wheel first descended as asserted on behalf of the claimant, the other five wheels of the crane would still be on the road surface with much of the crane’s load upon them. In relation to the damaged section of the road which was apparent following the accident, I much prefer the opinion of Mr. Hill, that it is more likely than not that this was caused during the toppling of the crane by its middle or rear wheel which was against the edge of the road surface, or mainly on the verge but very slightly on the edge of the road. Furthermore, in his oral evidence, Mr. Lawrence conceded that he may have driven the crane onto the verge in carrying out his manoeuvre. It is apparent to me that he was very much concentrating on his offside in order to manoeuvre past the van in the queue of oncoming traffic. Whilst he said that he did have regard also to his nearside and considered that he remained on the road, I find that he allowed his nearside wheels to drive onto the verge. It may well be that he did this because he kept the crane going straight rather than driving it round the curve which was in the road at that point. It is also important to note that Mr. Lawrence accepted that he did not actually see the road collapse beneath the front nearside wheel of the crane, but that was the sensation he felt. However, the sensation would have been similar if, as I find, it was simply the verge which collapsed beneath the crane once he had driven onto it.

I further accept that, at the various inspections of the road between January 2012 and the date of the accident by Messrs. Dickerson, Burgess and Vidovic, no substantial defect was noted on the road at the accident location. Such small fissures or cracks that may have been present there were, in my judgment, very minor and gave rise to no danger of the road surface collapsing. Of course, the crane had been driven along the same section of road on the morning of the day of the accident without any difficulty. Other heavy vehicles must also have driven along that section of road and manoeuvred through the traffic system without the road surface collapsing.

I further find that it is of significance that nowhere in his report did Mr. New state in terms that the cause of the accident was the collapse of the road surface beneath the crane. I did not find him a particularly impressive witness and I consider that he was perhaps understandably keen to exonerate Mr. Lawrence from any blame for the accident. I found Mr. Vidovic a much more impressive witness and I accept his account of the conversations he had with Mr. New insofar as their accounts differ. I find that, as Mr. Vidovic said, Mr. New did say to him that the driver had driven the crane onto the verge.

From the photographs and the evidence of the defendant’s witnesses, I find that there was no undermining of the road by reason of any weakness in the verge. It has to be remembered that the verge at the accident location was considerably wider than the section where the January erosion and February slippage had occurred. I accept that, if there had been any weakness in the verge at the accident location which undermined the road surface, it would have been seen by Mr. Burgess and/or Mr. Vidovic on their careful inspections.

I therefore find, in particular by reason of the matters referred to above, that the claimant has failed to prove that there was any defect in the road surface at the accident location which amounted to a breach of Section 41 or which caused the accident. The question then arises as to whether or not the state of the verge was such that it would give rise to a breach of Section 41. As I have already indicated, it is clear that very different standards apply to a verge which is part of a highway as opposed to the carriageway itself. The function of the verge is to support the carriageway, not to provide a safety buffer for overrunning vehicles or to support the weight of heavy vehicles. Many roads have adjoining grass verges and it cannot possibly be the case that highway authorities are required to have verges of such firmness that they can support any vehicles which drive onto them. Mr. Mottram and Mr. Hill agreed that, if any lorry or heavy vehicle drove onto the verge at the accident location, it would collapse. Mr. Lawrence said in his evidence that he would not go onto a soft verge because of the consequences. Unfortunately, of course, as I have found, that is exactly what he did do in this case. I therefore find that the verge in question was in a proper condition for its purpose and that there was no defect in it which would constitute a breach of Section 41 of the 1980 Act. Thus, so far as it is based on a breach of duty under the Act, the claimant’s claim must fail.

Even if there had been a defect in the road surface as alleged such that it collapsed, I would have found that the council had established a defence under Section 58 of the Act, having regard to the matters set out in that section. I did not find Mr. Widdowson an impressive expert witness. His report contained various premises which were wrong, such as the assertions that the road had collapsed in January 2012, that Woodeaton Road carried an unusually high volume of traffic and had a long history of severe flooding. Overall, I find that his report and his evidence very much overstated the claimant’s case and at times amounted to a counsel of perfection as to what the council should have done. I do not accept his assertion that this was a high risk road. I reject his suggestion that it was necessary for the road to be inspected monthly on foot. Mr. Widdowson was highly critical of the lack of documentation from the council regarding the inspections of the road and the planning of the road works. However, whilst documentation may assist a highway authority in establishing its defence under Section 58, the mere absence of documentation of itself cannot mean there is a failure on the part of the council or that it cannot establish its defence under Section 58. Although Mr. Dickerson did not give oral evidence, I find that he properly carried out his inspections and had regard to the state of the verges and the brook along Woodeaton Road. That this was so is supported by the fact that he noticed and reported the section of the verge which had eroded in January 2012.

I found Mr. Burgess and Mr. Vidovic to be impressive witnesses and I entirely accept their evidence about the various inspections which they carried out. I have no doubt at all that they were careful inspections and had anything been amiss at the accident site they would have noticed it and taken steps to deal with it. It is clear that Mr. Burgess was a man who erred on the side of caution, as is shown by his overall approach once the erosion and slippage further up the road had been identified.

As compared to Mr. Widdowson, I found Mr. Hopwood to be a measured and careful witness and I accept his opinion that the council acted properly and to the standard to be expected from a highway authority in relation to Woodeaton Road. It therefore follows that, even if there had been such defect at the accident location as alleged by the claimant, I find that under Section 58 the council had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.

The question then arises as to whether, having failed to establish a breach under Section 41 of the Highways Act, 1980, the claimant can establish any liability against the council on the basis of common law negligence. Whilst a highway authority is not liable at common law for a failure to maintain the highway, it may be liable in negligence or nuisance if, by some positive act, it introduces a new danger to the road. As was said by Lord Hoffmann in the case of Gorringe (ante) at paragraph 43:

“…I would certainly accept the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation.”

The main thrust of the claimant’s argument in relation to liability at common law in this case is that, by the layout of the road works management system, the council created the danger of a heavy vehicle overrunning onto the verge and the verge collapsing, so that it should have taken steps to prevent such occurrence. It is suggested that the council should have continued the traffic light managed section further south on Woodeaton Road to avoid that risk, or should have taken steps to prevent any vehicle running onto the verge at the accident site by way of white lines, posts, barriers or warning notices.

The defendant submits that, on the pleadings, it is not open to the claimant to make such claim. It is said that the case was firmly pleaded on the basis that the road surface collapsed and does not plead an alternative case based on the crane driving onto the verge. In my judgment, such alternative case is covered by the allegations in the Particulars of Claim and particularly in paragraph 3 and paragraph 5(4).

In support of such case, the claimant very much relies upon the evidence of Mr. Widdowson. Again, with regard to this aspect of the case, I find his views somewhat overstated. I reject his assertion that a construction design and management coordinator should have been appointed in connection with the proposed road works. The council was going to close the road when the road works were actually being carried out and I find that the traffic management system in place was reasonably safe for road users. I accept that it was in accordance with the code of practice as stated by Mr. Hopwood. I do not consider that it would have been appropriate to close the road completely or to ban heavy vehicles from it pending the undertaking of the road works. Whilst I accept that the edge of the road at the accident location could have been highlighted by white lines or marker posts or some form of barrier or that warning signs could have been erected, I do not find that it was negligent on the part of the council not to have done that. I particularly make that finding because the road management system had been in effect for some five months prior to the accident and there was no evidence of any other vehicle having got into difficulties by going onto the verge in question. In any event, I agree with Mr. New’s view that such steps would have made little or no difference so far as the occurrence of the accident is concerned. As I have already stated, Mr. Lawrence was well aware of the presence of the verge and he would be able to see the verge and the brook from his cab, and he knew the consequences of driving onto the verge.

It follows from the foregoing that I find that the claimant has not established any liability in common law against the council. Unfortunately, this accident occurred entirely due to the negligent driving of Mr. Lawrence. There must therefore be judgment for the council on the claim and the counterclaim.