West Law Report

CENET v WIRRAL MBC

Posted in Westlaw Reports by mrkooenglish on July 16, 2008

Last Updated: 3:14PM BST 09/07/2008
Queen’s Bench Division (Manchester)

Swift J

June 26, 2008

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Breach of duty of care – Credibility – Defects – Highway maintenance – Tripping and slipping – Defect in highway – Treated by judge as pavement not carriageway – Dangerousness of defect – s. 58 Highways Act 1980

FACTS

The appellant local authority appealed against a decision that it was liable to the respondent (C) in damages for negligence after she tripped on a highway maintained by the local authority. C claimed that when she was crossing the street where she lived she caught her foot in a depression in the road, tripped and fell, sustaining various injuries. Her evidence was supported by one purported eye witness (M), who also lived in that street. C and M had a history of involvement in similar highway tripping claims. M had made three such claims, and claimed to have been witness to a similar accident suffered by another neighbour. C’s brother and son had both made claims, her brother’s being supported by evidence from her and M. At trial the local authority contended that C’s and M’s history of involvement in similar claims cast doubt on their reliabililty and seriously undermined C’s case.

The judge found that the accident had occurred as alleged by C, the relevant part of the highway was dangerous and the local authority had not taken all reasonable care to ensure that it was not dangerous so it had no defence under the Highways Act 1980 s. 58. The local authority submitted that (1) the judge had failed to address the central issue of whether M’s history of suffering and witnessing tripping accidents was credible, or to mention the evidence that M had been at work at the time of the accident, or to consider the effect of M’s lack of credibility on C’s credibility; (2) the judge’s finding of dangerousness was wrong as the defect was long-standing, there was no evidence that it had caused any other accident, it had not been reported as dangerous by anybody and the inspectors who checked it after C’s accident took no steps to have it repaired; moreover, he should not have applied the standards that were applicable to the pavement rather than the carriageway; (3) the judge had been wrong to find that it had not taken all reasonable care to ensure the highway was not dangerous.

ISSUE

Whether the local authority was liable to C in damages for negligence after C tripped on a highway maintained by the local authority.

HELD (appeal allowed)

(1) The judge had seen the witnesses and was able to assess them with the history of claims in mind. He referred to the need to scrutinise the evidence with particular care in light of that history, and made clear findings about the witnesses’ credibility. He found C to be an honest and generally reliable witness; he was less impressed with M, but made an explicit finding about the extent to which he could accept his evidence. All three people involved in the two tripping accidents witnessed by M lived on the same street, where the community was particularly litigious; and the accidents, two years apart, happened there. It was not completely inconceivable that a person living on a residential street who was frequently out and about should be a witness to two accidents occurring there. The coincidence was not of the same order as that of two people, apparently unknown to each other, being involved in three separate road traffic accidents within a year, Francis v Wells [2007] EWCA Civ 1350, [2008] RTR 13 distinguished. M’s involvement as a witness and a victim in five separate tripping accidents was bound to raise some suspicions as to his credibility, but the history did not point inevitably to the finding that he was lying when he said that he had witnessed C’s accident.

(2) The judge had been entitled to find that C’s accident had occurred at a point that pedestrians were likely to choose as a crossing point, but he had unduly emphasised the extent of pedestrian use on what was an ordinary residential street. He had erred in finding that the location of the accident was more akin to pavement than carriageway, and that led him wrongly to apply the standards appropriate to a pavement. Applying the less stringent standards applicable to the carriageway, the evidence pointed to the defect not being dangerous. The risk it presented was of a low order and the cost of remedying all such defects in the carriageway would be wholly disproportionate, Mills v Barnsley MBC [1992] PIQR P291 applied.

(3) If the judge had been right to find that the location of the defect was more akin to pavement, then he would have been entitled to find, as he did, that the local authority’s defence under s. 58 failed because its inspectors had not applied the guidelines applicable to pavements.

Peter Cowan (instructed by Weightmans LLP) for the appellant. Peter Kidd (instructed by Haworth & Gallagher, Birkenhead) for the respondent.

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