Atkins v Ealing London Borough Council

Local authority Scope of duty to maintain highway — Claimant suffering injury after tripping on manhole cover — Defendant local authority inspecting highway on foot — Inspector failing to notice loose manhole cover — Whether defendants breaching statutory duty to maintain — Whether defendants entitled to rely upon statutory defence of reasonable care Appeal dismissed The claimant was injured as she was walking along a shopping street when she stepped on a loose manhole cover that tilted and caused her foot to fall into the manhole. She injured her ankle and brought a claim for damages against the defendants, as the local authority responsible for maintaining of the highway. The judge ruled in her favour and damages were agreed in the sum of £2,750. The defendants appealed. It was not disputed that because manhole covers have a tendency to tilt when stepped on, the highway was dangerous, so that the defendants had failed to maintain it, pursuant to section 41 of the Highways Act 1980. The basis of the appeal was that the judge ought to have held that the defendants had proved that, pursuant to section 58 of the Act, they had taken such care as was reasonably required to ensure that the manhole cover was not dangerous. The defendants’ inspector carried out a monthly inspection of the highways on foot. He would look for defects, particularly a “trip”, a difference in height between two adjacent surfaces of the highway of more than 19mm. The defect that had caused the manhole in question to tilt could be recognised as a defect only when it was trodden upon; it otherwise appeared to be in order. Thus, the defendants’ inspection system could not have detected the dangerous condition of the manhole cover. The defendants submitted that the judge had: (i) failed to strike the necessary balance between public and private interests; or (ii) placed too high a burden upon the defendants. Held: The appeal was dismissed. The judge had considered all the matters in section 58(2) of the Act to which he was obliged to have regard, namely: (i) the character of the highway and the traffic that was reasonably expected to use it;  (ii) the standard of maintenance appropriate for a highway such as the one in question; (iii) the state of repair in which a reasonable person would have expected to find the highway; (iv) whether the defendants knew, or could reasonably have been expected to know, that the condition of the highway was likely to cause damage; and (v) whether the defendants could not reasonably have been expected to repair the manhole cover prior to the accident. The standard of maintenance appropriate for a manhole cover in a shopping street was a standard that ensured, so far as reasonably possible, that pedestrians were not at risk of falling into a hole that might be large and contain pipes, cables and other items. Manhole covers that were liable to tip if stood on by a pedestrian required urgent maintenance and repair because of the risk of serious injury. Thus, where a highway authority were unable to prove the cause of such a defect, they were likely to have difficulty discharging the burden of proof laid down in section 58. In the present case, the defendants’ visual inspection did not identify the defect in the manhole, but it could not do so and was not designed to do so. The defendants had not considered the question of how to inspect manhole covers to ensure that they were secure. Their system of inspection was designed to identify and avoid a different hazard, namely uneven pavement surfaces that might cause a pedestrian to trip. In those circumstances, the judge had neither failed to strike the necessary balance nor placed too high a burden upon the defendants. Giles Mooney (instructed by Hallam-Peel & Co) appeared for the claimant; Steven Snowden (instructed by Barlow, Lyde & Gilbert) appeared for the defendants. Eileen O’Grady, barrister