Karpasitis v Hertfordshire County Council , KBD 20 October 2023
An interesting case in which all the regularly encountered highway issues were in dispute: dangerousness/breach of section 41, the defendant’s section 58 defence, and contributory negligence.
On 22 April 2020 the claimant, an experienced cyclist, was riding his mountain bike on a path adjacent to the A10. The path was narrow – approximately 1m in width – and the surface was slightly undulating. The claimant encountered a jogger travelling in the same direction. He decided to overtake the jogger, which involved riding onto a grass verge to the right of the path. The verge was slightly higher than the path at this point, so there was a slope. The main A10 itself was then to the right of the verge. Unfortunately, as the claimant rode onto the verge he encountered a hole which threw him off his bike and caused a serious spinal injury.
He brought an action against Hertfordshire County Council (HCC) as the highway authority, alleging a breach of section 41 of the 1980 Act and also negligence at common law.
The status of the path was in dispute. Elsewhere, south of a nearby bridge, the path was much wider (2.5m), perfectly flat and signposted as being a shared pedestrian and cycle route. The claimant had been on that wider part of the path earlier in his ride, before turning around.
HCC asserted that the section of path where the claimant’s accident occurred was not a shared cycle route but was a footpath only and, therefore, that the claimant’s presence on the path on his bike was unlawful. HCC had raised the defence of illegality (that is, the argument that the claim under section 41 was barred by virtue of his riding illegally on a footpath), but that was not pursued at the trial.
Witness evidence was provided by an acquaintance of the claimant, who said that he had been riding on this part of the path for 40 years. Publicly available data from the Strava platform also revealed usage of the path by cyclists.
There was a dispute about the size of the hole which caused the accident, which at some point later was refilled, though HCC claimed they did not ask for such works to be carried out.
A motorist who stopped to help at the scene claimed she had noticed a “very large” and “very deep” hole on the grass verge, though she said it was quite difficult to see as the grass was overgrown. She claimed that if she had stepped into the hole it would have been up to her knees.
The claimant’s father had taken photos of the area on 6 May 2020, showing the presence of a hole.
HCC brought evidence from several grass cutting operatives employed by its highway partner to the effect that the verge had been mowed only weeks earlier, on 7 April, and had they seen a hole of that size it would have been reported. The hole was not reported in that way – the inference that HCC asked the court to make, therefore, was that the hole was not present at the time.
The last routine inspection of the path and verge had been carried out on 13 February 2020 and the highway inspector did not identify the hole said to be responsible for the accident. If he had seen it, he would have put a metal footway plate over it to make it safe and then reported the issue. The inspection on 13 February did reveal defects elsewhere.
The inspector had signed a witness statement in the course of the case but had since retired from his employment and he was not called to give oral evidence at trial. The claimant sought to challenge the weight to be given to his evidence for that reason.
Given the seriousness of the injury and value, the court was assisted by expert evidence on liability issues. This was firstly from highway engineers and secondly from cycling experts, though the latter did not add much to the case.
The claimant’s highway engineering expert felt that the hole must have been present for a long time, certainly more than a few weeks, and was likely to have been present at the date of the last inspection in February. He had been instructed early in the case and had attended the area on 19 May 2020, measuring the hole to be 55cm in depth and about 70cm x 80cm in horizontal dimensions.
HCC’s highway engineer on the other hand thought that the offending hole was likely to have been present for only a short time and was probably caused or contributed to by burrowing animals or by an underground rotting tree stump (the experts had the benefit of jointly observing an excavation of the refilled hole in the course of their investigation).
HCC’s expert added that the hole photographed by his counterpart on 19 May 2020 was not a Category 1 danger but a Category 2 matter (therefore, not an immediate danger). This assessment took into account various factors, including low expected usage of the path generally, but particularly on the verge.
The judge found that the most reliable evidence of the size of the hole at the time of the accident was from the motorist who stopped to help and described the hole as “very deep”. Her description of the hole coming up to around her knees was consistent with the claimant’s expert’s assessment a month later of the depth being 55cm.
Despite the low predicted usage of the verge, the judge found that the hole did amount to a danger and a breach of section 41. He believed that the claimant’s actions were a normal usage of the verge and the HCC ought to have foreseen it could be used for passage at some times.
Given its size, it is no surprise that the judge concluded the hole was a breach of section 41. The hole would be a hazard to pedestrians, not just to cyclists.
The key issue was HCC’s section 58 defence.
The inspection system as a whole was reasonable. Despite the absence from the trial of the highway inspector, the judge found that the hole probably was not present at the time of the last inspection in February 2020. The judge relied in part on the evidence of HCC’s expert, about the hole probably developing a short time before the accident due to animal activity. The judge preferred HCC’s expert’s view of the longevity of the hole over the claimant’s expert.
The section 58 defence, therefore, succeeded. HCC had taken reasonable care by virtue of its inspections.
The judge dealt briefly with the claimant’s other claim, based on negligence. The claimant had alleged that HCC should have placed a sign marking the end of the shared cycle path, so the claimant would have known not to ride on this section, and that this was negligent.
Such guidance which exists does not generally require ‘end of route’ signs to be placed where cycle paths terminate. The judge anyway agreed that HCC had not done anything positive to create a danger. Instead, it was an omission for which common law does not generally allow a claim in negligence (adopting the more recent terminology, the court might have said that HCC was guilty of ‘failing to confer a benefit’ rather than characterising it as an omission).
The judge went on to say that if he had found in favour of the claimant on liability he would have found contributory negligence of 33%. This was because the claimant’s speed (about 10mph) was too fast to ride on the verge. He ought to have anticipated the presence of undulations on the verge and ride at a speed which allowed him to look for and avoid any defects present.
Highway authorities can generally be confident that the standard of maintenance the court will expect to be applied in verges is lower than in carriageways or footways. Nevertheless, a hole as deep as 50cm is likely to be a danger to any expected highway user and it is not a surprise that the court concluded there was a breach of section 41, notwithstanding HCC’s expert’s attempt to categorise it as a Category 2 matter.
There is surprisingly little case authority dealing with the consequences for an injured claimant who has exceeded his permission to be on the highway, particularly cyclists who are injured by defects on footpaths and footways (which are quite distinct things). Authority from Northern Ireland on broadly equivalent statutory provisions concluded that the potentially unlawful highway usage was no bar to a claim and that has generally been the position adopted by highway authorities in England & Wales in such cases. The crucial point is that the standard of maintenance to be applied is only that which is reasonably safe for expected users.
The absence from trial of a highway officer who carried out the crucial last inspection before an accident is a common scenario faced by those dealing with the defence of claims.
In this case, the inspector’s retirement was correctly held not to be a good reason for his absence from trial. Despite that, the court accepted that the inspection was done properly and that the offending hole was not present at the time.
It was helpful that HCC had managed to obtain a witness statement from the inspector and that he had identified other defects elsewhere during the inspection, evidencing that it was properly done (the claimant had argued the inspection was not done at all, relying on apparent discrepancies in GPS data).
There was also documentary evidence of inspection, namely the records. A crucial factor in this finding was also the evidence of HCC’s engineering expert, who was of the view that the hole was likely to have been only formed shortly before the accident.
Where there is positive evidence (or expert opinion) that the offending defect arose after the date of the last inspection, that makes the highway authorities prospects of success with the section 58 defence better.
Author: Michael Davies – Associate