Council defends High Court challenge after cyclist injured on grass verge

Hertfordshire County Council was not liable for an accident in which a cyclist was injured, the High Court has ruled.

In Karpasitis v Hertfordshire County Council [2023] EWHC 2614 (KB) Vikram Sachdeva KC, sitting as a deputy High Court judge, found that Hertfordshire had established a defence under Section 58 Highways Act 1980 showing it had taken reasonable care to seek to ensure the highway section concerned was not dangerous.

The claimant cyclist had in April 2020 followed a path separated from the A10 road by a grass verge, which began marked as a shared footpath and cycle path.

But north of the Paul Cully bridge the path narrowed from 2.5 to approximately 1.0 metres, with no sign denoting any changed use.

On his return journey, the claimant was cycling at some 10mph when he decided to overtake a jogger by cycling on the grass verge at a sharp right hand turn from the path.

There was though a hole in the verge, collision with which threw the claimant from his bicycle and caused a complex fracture of the second vertebra later resulting in the loss of his job as a social worker.

The claimant said Hertfordshire had breached both s41 Highways Act 1980 and a duty of care owed at common law.

He told the court that the breach of s41 was because Hertfordshire failed to heed the “obvious” risk the hole posed to users of the path given it was designated as a cycleway/footpath, and its narrow width at that point meant interaction was likely to occur between cyclists and pedestrians.

Additionally, he argued it was obvious that users had to move onto the verge to let others pass and that the hole was only 0.7 metres from the path and so should have been identified during routine inspections.

Since the path south of the bridge was clearly marked as dual use, a sign should have indicated this status ended north of the bridge where it narrowed, he said.

The court heard evidence from numerous Hertfordshire staff and highways repair contractors about when the path was inspected and what had been found.

Judge Sachdeva found there had been no significant hole in the grass verge in February 2020 when a routine inspection had taken place, which was the most recent scheduled before the accident.

This was because it was very likely that the hole was created by collapse into a void created by burrowing creatures between then and the accident on 22 April.

He also found the hole varied in size over short periods of time, “having not been detected on 6 October 2020 but again being present on 30 October 2020” and concluded the hole “could vary in size over short periods of time”.

Judge Sachdeva said: “I find that, on the specific facts of this case, that stepping onto or cycling onto the grass verge in this case is a normal use of the highway, and that the public have a reasonable expectation that substantial holes in such a verge would be repaired within a reasonable period of their discovery.

"Such substantial holes constitute the sort of danger which an authority may reasonably be expected to guard against. I do not accept that this finding would place an unrealistic or disproportionate burden on highway authorities' limited budgets.”

But considering the section 58 defence, Mr Sachdeva said Hertfordshire’s policy of biannual walked inspections of the footway and verge “is accepted as being in accordance with national guidance and lawful”.

He said documentary evidence showed an inspection was performed on 13 February 2020, which did not detect a hole and there was no reason to think this undertaking was “anything other than competent”.

“My assessment of the evidence in the round is therefore that the defendant has satisfied the burden of proving the s58 defence. For that reason, the defendant is not liable under s41 Highways Act 1980.”

The Deputy High Court judge also accepted that nothing required Hertfordshire to have marked the change of use since the absence of signs indicating shared use north of the Paul Cully bridge “implies that the path is not shared use. There is therefore no liability in negligence in this case.”

He said that had he found for the claimant he would have reduced his damages by 33% for contributory negligence.

“In my judgment the speed of 10mph was excessive for the conditions, and the sharp right hand turn was a manoeuvre which [the claimant] should avoided because it made it difficult for him to see the route ahead,” the judge said.

“Given that he was entering a verge where it might be more difficult to see and avoid unevenness, he ought to have taken more care to give himself time to look out for defects and to be able to avoid them. This was a large hole and he did not see or avoid it. His actions were negligent and contributed to the accident.”

Mark Smulian