A local authority has a defence to breach of statutory duty to maintain the highway under the Highways Act 1980 where it can prove that it has taken such care as reasonably required. For common law liability a positive act is necessary.
The court considered these issues in Demetrios Karpasitis v Hertfordshire County Council [2023] EWHC 2614 (KB), a claim for damages against the defendant local authority for personal injury sustained by the claimant when, in April 2020, he overtook a jogger on the grass verge adjacent to the A10 and was thrown from his bicycle by a hole in the verge.
Section 41 of the 1980 Act creates a duty reasonably to maintain and repair a highway maintainable at public expense so that it is free of danger to all who use it in the way normally to be expected of them.
This includes works of repair and measures to obviate the need to repair.
The court found that the pathway was a footway due to its narrow width, slightly undulating nature and lack of signposts marking it as a shared cycleway and footway.
The fact that cyclists used it did not change its status.
The defendant’s defect management approach provided for six-monthly inspections of low traffic footways, including the adjacent grass verge.
The court accepted that on the day of the last inspection in February 2020 there was no significant hole but found that on the date of the accident there was a hole measuring 0.8m x 0.7m x 0.55m.
The hole was dangerous and called for repair. There was evidence that the footway was used by cyclists and it was foreseeable that pedestrians and/or cyclists would use it and such use was normal.
But for the breach of section 41 the accident would not have occurred and if a “no cycling” sign had been erected the claimant would not have attempted to cycle on the footway. Causation was established in both the statutory and common law claims.
However, the defendant had proved under section 58 of the 1980 Act that it had taken such care as was reasonably required in all the circumstances to ensure that the area was safe by undertaking the inspection in February 2020. It was not liable under section 41.
It is mandatory under the Highway Code to sign routes if pedestrians are to share them with other road users so, unless a sign permits shared use, a footway is for pedestrians only.
While signage could have been clearer it was not negligent at common law to omit to erect a sign.
Louise Clark is a property law consultant and mediator
