A trip too far

Michael Pether and Hannah Mitchell report on a recent Court of Appeal case that highlights the importance of identifying the threshold for liability for local authorities, in standard tripping cases.

The claimant in the case of Lawrence v Kent County Council had tripped over a protruding manhole cover, injuring herself as a consequence. In making an assessment as to the height of the protrusion, the judge at first instance was assisted by the highways inspector, Mr Cunningham, who came to inspect it immediately after the accident. He was also assisted by evidence of the claimant's daughter, Mrs Rose. Mrs Rose saw the manhole cover within days after the accident, knowing her mother had suffered an injury.

The judge made a finding that the protrusion was “at least 15 mm” in height. The defendant’s intervention level was 20 mm. The claimant won at first instance, but the Council, concerned at the precedent that could be set if a 15mm protrusion could be considered dangerous and the high duty this would impose, appealed.

At the High Court, Eady J overturned the decision on the basis that the judge had been wrong to admit the evidence of a lay witness on the issue of ‘dangerousness’. He decided that having upheld this ground of the defendant’s appeal, he must then reach his own conclusion on the same material that was before the trial judge. He took the view that the manhole cover extending 15 mm above ground was an “unremarkable” protrusion and accordingly the council had not breached its statutory duty.

The claimant appealed to the Court of Appeal on the basis that Eady J’s view as to the relevancy or irrelevancy of the witness evidence was incorrect. The Council cross-appealed, seeking to uphold the Eady J decision even if his view on the evidence were wrong.

Witnesses of fact giving opinions

Eady J had found that the trial judge had erred in giving any weight to Mrs Rose’s evidence because it amounted to lay witness opinion. The Court of Appeal took the view that the evidence of lay witnesses was not irrelevant, but the trial judge had placed the evidence of Mrs Rose higher than she had put it herself. The trial judge’s comment on Mrs Rose’s evidence had been that she thought it was “an obviously dangerous feature in the pavement”. In fact, Mrs Rose had not used the word ‘dangerous’.

The inspector, Mr Cunningham, ordered a repair of the defect following an inspection after the accident. On a standard works order he circled the category ‘general maintenance’ rather than the ‘2 hour’ or ‘3 day’ options, and he accompanied this with the instruction “make safe small trip”.

This instruction “make safe” was one of the factors that led the trial judge to conclude that the protruding cover was a danger to pedestrians in the sense that in the ordinary course of human affairs danger may reasonably be anticipated from its continued use by the public (the test set down in Mills v Barnsley Metropolitan Borough Council (1992)). This was despite Mr Cunningham’s oral evidence that he would not have circled ‘general maintenance works’ for a defect he considered to be dangerous, and this evidence was not challenged by the judge or by counsel for the claimant as being untruthful. The Court of Appeal concluded that the trial judge had dealt with Mr Cunningham’s evidence somewhat unfairly in relying upon his written instruction as evidence that the cover was in serious need of repair.

The Court of Appeal clarified that the weight which is to be given to lay witness opinion evidence in any given case is dependent upon several factors. In Lawrence, Mrs Rose was the claimant's daughter and therefore lacked independence as a witness. Mr Cunningham may have been held responsible for any failure to repair the manhole cover in question, and he may therefore have had an interest in portraying the manhole cover as safe, so as to lessen his responsibility. Nevertheless, the lay witness evidence in this case did not support a finding that this 15 mm protrusion was dangerous to the extent it should have imposed a duty on the defendant to eliminate it. The trial judge in sympathy for the claimant had failed to keep in mind the balance between the public and the private interest.

Approach of appellant court to appeals on fact

Eady J’s approach, having decided that the trial judge had taken account of irrelevant matters, was that he was free to look at the matter afresh and take his own decision. This is the approach of an appellate court where what is under consideration is the exercise of a discretion. The Court of Appeal considered that he was misled in this approach, even though the result may not be different.

The appeal court must have regard to the advantage the judge had in hearing the evidence and the whole case and will examine whether the findings of primary fact are justified. Even if there was no misdirection the appellate court is entitled to assess for itself whether on those facts an inference or finding of dangerousness, to an extent which imposes a duty on the Council, was justified.

Here, Eady J was misled insofar as both parties conducted the case on the basis that this judge was exercising a discretion. However he was right to examine whether the trial judge misdirected himself or relied on evidence which he should not have relied on.

Different Reasoning, Same Conclusion

The Court of Appeal found that it was not open to the trial judge to conclude that the manhole cover was dangerous for the purpose of section 41 Highways Act 1981. The daughter’s evidence had been put too high, and although the inspector’s evidence was not independent, his evidence had been unfairly misinterpreted by the judge at first instance as almost amounting to an admission of dangerousness. The Court of Appeal agreed with Eady J’s conclusion that this protrusion in the footway was unremarkable and not dangerous.

Helpfully, perhaps, for local authorities Mr Cunningham’s contemporaneous record of the inspection in which he categorised the defect as requiring only ‘general maintenance’ was ultimately accepted by the Court of Appeal as evidence that this defect was not dangerous. Future cases will be guided by the judgment in Lawrence, which has clarified the duties of local authorities in relation to highway protrusions, as well as the court’s position on evidence given by lay witnesses, and serves as a reminder of the need for courts to balance the public/private interest.

Michael Pether is a partner and Hannah Mitchell is a solicitor at Berrymans Lace Mawer. They acted for Kent County Council in the Lawrence case. Michael can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..