Thomas v Warwickshire County Council

  MR JUSTICE WILKIE : 1.                  The claimant suffered from a significant head injury when he lost control of and fell from his bicycle when riding with the Solihull Cycling Club on Sunday 16th April 2006. 2.                  At the time of the accident the claimant was riding along Gospel Oak Lane, Pathlow, Stratford-on-Avon.   It is alleged that the accident was caused by a defect in this highway which was dangerous. 3.                  The claimant’s case is that the highway was in a dangerous condition in that there was present, and stuck to it, a spillage of concrete which the claimant contends was dangerous to cyclists using the highway and on which his bicycle foundered causing him to fall onto the highway when he was travelling at a speed of some 20 – 25 miles per hour. 4.                  The claimant’s case is that the dangerous condition of the highway was due to the defendant’s failure to maintain the highway in breach of its duty to do so under s.41 of the Highways Act 1980. 5.                  This is a trial of liability and contributory negligence (save in respect of the contributory negligence alleged on the ground that the claimant was not wearing a safety helmet).   The issues which I have to decide are as follows: i)                    Was the highway dangerous for traffic? ii)                   Was the danger due to a failure by the defendant to maintain the highway ( pursuant to section 41 of the Highways Act)? iii)                 Did the danger cause the claimant’s accident? iv)                 If the first three issues are determined in the claimant’s favour, did the defendant nevertheless take such care as, in all the circumstances, was reasonably required to secure that the highway was not dangerous for traffic? This raises the question of the statutory defence provided by s.58 of the Highways Act 1980. v)                  If the defendant is found liable to the claimant, should the claimant’s damages be reduced for contributory negligence (save in respect of the issue referred to above which would be for trial on a later occasion)? The claimant makes allegations based on the common law but these are not pursued as there is well established authority that the common law cannot give rise to liability where, in this context, there is no statutory liability. The evidence 6.                  John Thomas (the claimant) has been a member of the Solihull cycling club since about 1992 and, until the accident, he would cycle approximately 15,000 miles per year. He has a high value racing bicycle with relatively narrow tyres and no tread, designed to increase speed with less effort, and drop handlebars.   He is an experienced cyclist. 7.                  At approximately 11am on Sunday 16th April 2006 he was with the cycle club cycling along Gospel Oak Lane.   There were about 18 of them in the group.   It was their intention to ride to Stratford-on-Avon, a distance of about 20 miles from their starting point.   He recalls turning onto Gospel Oak Lane at which time the group was split into two separate groups. He was positioned towards the rear of the first group.   There were cyclists in front of him and behind him.   He was not wearing any form of protective headgear. He recalls being in rows of two, he being positioned on the outside his row but he has no recollection of the period immediately prior to and during the accident.   He had not travelled often down that road and he has no recollection of having seen any concrete in the road before.   When riding normally, he would have his hands on top of his handlebars more upright than if he was going faster when he would be holding the drop element of the handlebars.   He cannot recall his position that day.   On 3rd July 2008 he made a statement in which he put his speed at between 25 and 30 miles an hour. In a later statement on 25th November 2008 he said that he had been told that as a group they were travelling between 20 and 25 miles an hour.   He agreed that his memory would have been better at the time he made his first statement and that, going downhill as they were at the point immediately prior to the accident, that was an opportunity to pick up speed. 8.                  When riding in a group he would normally ride some 5 to 6 inches from the back wheel of the bike in front of him. Not directly in line but offset. 9.                  Alan Thomson said that on that day he was one of approximately 20 cyclists cycling in a group which included the claimant.   He witnessed the accident.   They were cycling along Gospel Oak Lane and, as the road bends to the left and drops steadily downhill, there was a piece of concrete adhered to the road.   The claimant’s bike hit the concrete causing him to lose control before falling off and hitting the road hard enough to knock him unconscious.   Mr Thomson phoned for an ambulance and he was taken to intensive care. 10.              If they were not cycling along a major road they would cycle in ranks of two. Depending on how confident about the person in front of him was, his normal practice would be to give half a metre distance between him and the bike in front.   They were travelling East to West along Gospel Oak Lane in ranks of two.   Mr Thomson was in the rank immediately or one behind the claimant and on the inside.   He cannot recall the claimant’s position was on the inside or outside. 11.              He had ridden along this road some 10 or 20 times.   He had seen the concrete in that position prior to the day of the accident, maybe a year before, maybe longer.   The normal practice is that, if there is a pothole or a defect in the road, people in the front of the group would shout that there is an obstacle and where it was.   The message should be passed down the group but this doesn’t always happen.   He cannot recall any warning being conveyed on this occasion, although he knew there was an obstacle and had been looking for it.   He heard the sound of the claimant’s wheel hitting the concrete. When the wheel hits the concrete the bike stops and the rider carries on and he saw the claimant moving across the road. He ended up in the centre of the road, further down the hill from the concrete, in a foetal position, unconscious with two rivers of blood going down the road.   Mr Thomson was going about 20 miles an hour. He didn’t think it was as fast as 25 to 30 miles an hour.   He had the impression that the claimant turned in the air and hit the ground backwards.   He heard his bicycle hit the concrete. He couldn’t see what else he could have hit.   Gravel can cause a cycle to lose control downhill turning on a loose surface but he didn’t see any gravel there and if the bike had made contact with the wheels in front it would have made a different sound to the one he heard.   Whether or not an obstacle 25 millimetres high would cause difficulty depends on the angle the wheel hits it. Because the concrete was on a road which was going downhill round a bend, it was not easy to see it from a distance. 12.              David Stanton was with the Solihull Cycling Club on that day with his partner Lucy Ryan though they were not cycling together.   He did not actually see the accident because he was at the back of the group, about 30 metres away from the claimant.   They were riding two abreast in Indian file.   He was aware of something going on ahead and, when he arrived, the claimant was lying beyond the obstruction in the middle of the road on the outside towards the crown of the road.   His head was pointing uphill back the way they had come.   13.              He had ridden that road 2 or 3 times.   He was aware there was a hazard on the hill at the top, someone may have mentioned that they should be careful going down there.   He can’t remember saying anything to the ambulance man about what had happened. 14.              Lucy Ryan has been cycling with the club since 1997.   She was with the cycle club group that day.   She is familiar with the road, having cycled down it a number of times over the years.   She is clear in her mind that the concrete shown on the photograph had been there for a number of years.   She was one of the first on the scene to administer first aid.   She reported the accident to the police after the accident had taken place, but not prior to the time of the accident.   She had indicated to the police that the claimant’s family would be taking it up with the council. 15.              She was in the front of the group and did not see the accident.   She had last cycled with the club in August or September 2005 when they had gone down that lane and the concrete lump had been there at that time.   She couldn’t recall anyone having given a warning call on this date about the presence of concrete on the road.   Her recollection of having seen the concrete lump in that position is not affected by her expression of opinion immediately after the event that the claimant would be suing the council.   She hadn’t previously reported the obstruction. If she reported every pothole or obstruction she would never be off the phone.   This was serious because of the accident and that was why she had contacted the police. 16.              She agrees that the concrete on the road is obvious and you can’t fail to see it if you are close to it but it is on a bend and you would not see it until up close.   She would have been travelling at about 25 miles per hour near the front picking up speed as she descended.   She hadn’t spoken to the ambulance personnel when they attended. 17.              Roger Harding is employed by the defendant as a manager for the road traffic accident data base.   At the time he was residing in  Gospel Oak Lane and at that time it was in a relatively good state of repair.   He returned home at 7pm on that date to find a damaged cycle in his yard and he was informed that a cyclist had come down the road in a group of cyclists and had hit an obstruction in the road about 40 to 50 metres away from his driveway.   On Monday or Tuesday the 17th or 18th April he went to the accident location and took 5 photographs of the obstruction, which was solidified concrete, about 1 metre long by 10 centimetres wide and 25 millimetres high.   In his view it had fallen from a vehicle carrying liquid cement and had solidified.   He could not say how long it had been there as he had not noticed it before.   He reported it to the Warwickshire Area Surveyor who had it removed within a day. Defendant’s evidence on maters of fact 18.              Carolyn Burrows is employed by the defendant as a team leader in the road safety engineering team since December 2007.   She has worked in the road safety engineering team since February 2001.   Her work includes analysing the causation of crashes on Warwickshire’s roads where someone has been injured and Warwickshire police have recorded the details of the incident. Her task is to see whether there is a treatable pattern of crashes at particular sites.   She has produced a document identifying accidents reported by the police to her section on Gospel Oak Road from June 2001.   The accident is question is not included.   None of the recorded accidents from 2001 until April 2006 relate to the presence of a concrete lump in the highway. 19.              She confirmed that the police did not record every accident, only multiple vehicle accidents or single vehicle accidents if there was a very serious outcome. They do not record, for her purposes, accidents involving horse riders, cyclists or pedestrians.   Thus, there could have been other accidents on that road which were not in her records. 20.              Malcolm Allinson has been employed by the defendant within the Highways Maintenance Dept since 1974.   Currently he is a highways information manager responsible for overseeing and organising condition assessment surveys.   A “C” road such as Gospel Oak Lane would be the subject of a course visual inspection every two years by two inspectors in a slow moving vehicle. 21.              A “concrete lump” is not the type of defect which would be identified on such an inspection. They are looking for specific categories of defect such as: major and minor surface deterioration, rutting, surface cracking, deformation in the form of settlement or subsidence and edge of carriageway deterioration.    A concrete lump would not fall into any of these categories.   In the event that the inspectors had considered that the concrete lump was a potential danger to road users they could have contacted others to have it removed.   CVI inspections are more concerned with the structural integrity of the carriageway and follow a nationally laid down specification rather than being safety related which are the subject of individual and specific routine highway safety inspections. 22.              As for safety inspections, the national code categorises types of road. Gospel Oak Lane would be considered a category 4A link road and, as such, the starting point would be to subject it to a safety inspection every 3 months, however that is not mandatory.   Given the traffic count information available for Gospel Oak Lane there is nothing to cause him to believe it should have been subjected to more frequent safety inspections  than once every 24 weeks. 23.              He confirms that the entire length of Gospel Oak Lane was resurfaced in August 2003 and there had been no further resurfacing works until the accident on 16th April 2006.   The material used was a hot rolled asphalt mixture which is a gap graded mixture of different sizes of aggregate bound together with bitumen and spread out and levelled by machine and compacted to a thickness of 40 millimetres or more.   He agrees with the claimant that wet concrete would have moulded itself onto the macro texture of the road surface and that the finer particles of the concrete, such as cement and sand, would have filled the small crevices and generally moulded themselves around the individual pieces of bitumen covered aggregate making up the road’s top surface.   When set, the concrete would become brittle and, in his view, the concrete should have been capable of being removed fairly easily using nothing more than a hand shovel and there is unlikely to have been any significant damage to the underlying road surface.   From the photographs taken of the location on 29th January 2010 there was no evidence of damage to the highway surface following removal of the concrete.   During his site visit on that date he was unable to find any marks on the road surface relating to the concrete lump residue such as signs of scuffing, scoring or tooling marks.   In the event there had been any element of filling required at the time of the removal of the concrete on 19th April the materials used would be contained within the work order for the job.   However there was only a charge for labour and no materials were used. 24.              In relation to the concrete lump, which was of the order of 20 to 24 millimetres high, if the presence of such a lump of concrete on the road were to be treated as dangerous requiring removal within 24 hours there would be massive implications for the defendant in terms of costs and resources.   Such a concrete spill is not unusual, there would be a need to amend and lower the intervention criteria, a need for more highway inspectors and such inspections would take far longer.   He suggests that to treat such a concrete lump as dangerous requiring removal action would be unrealistic in the light of budgetary and resource constraints. 25.              He produced the Highway Maintenance Safety Inspections Manual of the defendant issued May 2003.   Safety inspections are designed to identify those defects which are, or are likely to create, a danger to the public and therefore require immediate or urgent attention.   The frequency of such inspections provided for such a road is 24 weeks.   Two levels of safety defect are recorded. “Category 1” defects will be repaired or made safe immediately.   If a full repair is not possible, further action is: to record the defect and request the area manager to organise appropriate repairs within 24 hours or 28 days.   “Category 2” defects are described as defects that are likely to become “Category 1” defects before the next safety inspection is carried out.   These will be recorded and reported to the area manager to organise appropriate action within 28 days.   The manual then deals with a number of specific types of defect relating respectively to particular parts of the road, for example, the carriageway running surface where a “Category 1” defect is described as a pot hole anywhere within the carriageway greater than 100 millimetres in depth or if in the wheel track greater than 50 millimetres.   Action required is to make it safe with a temporary repair and then record a “Category 2” defect.   If a temporary repair is not possible so as to leave it safe, it should be reported as a “Category 1” defect. A “Category 2” defect is described as a pothole anywhere within the carriageway other than the wheel track between 50 and 100 millimetres in depth on roads where the use of the carriageway is such that the pothole can be considered unsafe.   That requires action by the safety team by recording it as a Category 2 defect. In respect of carriageway edges and verges, “Category 1” defects are defined by reference to a specific measurement. For footways, cycleways and pedestrian areas, a “Category 1” defect is described by reference to pothole of a specific depth and there are other specific descriptions not involving measurements.   For ironwork there are, in describing “Category 1” and “Category 2” defects specific measurements. There are other specific requirements in respect of defects in drainage, road signs, street lighting units, traffic signals both permanent and temporary. 26.              There is no specific reference to concrete blocks or spillages. There is, however, a residual category described as “other” that reads as follows: “Category 1 defect: where during the course of an inspection an incident activity or defect is observed likely to cause danger to the highway user (such defects will include damaged street furniture, fallen trees, trees in precarious positions, objects fallen from vehicles, fuel spillages ) action by safety team make safe by removing obstruction or protecting.   If further action is required record as a Category 2 defect.   If temporary action not possible so as to leave safe report as a Category 1 defect” 27.              He confirmed that the manual provided for a visual safety inspection every 24 weeks for this category of road.   It was suggested that the manual failed, in its description of “Category 2”, to accommodate a situation where there was a defect which did not require to be dealt with urgently but which, nonetheless, would not deteriorate into a “Category 1” defect. He did not accept that this was so.   If it didn’t require intervention it would not be a defect within their categories.   He was asked to comment on Mr Miles’ statement that a concrete lump, with a vertical face of 20-30 millimetres, sited within the ordinary wheel tracks, would have crossed the threshold for remedial action whereas, out of the wheel tracks, it would require a vertical face of some 50 millimetres to cross that threshold.   He agreed there was nothing in the manual specifically about concrete but, in the section which describes other defects, he would accept that it would be within Mr Miles’ discretion, as an experienced inspector, to have reported such a concrete lump for remedial action, as a “Category 2”, to be taken within 28 days.   He agreed that, on that basis, the only thing which prevented this lump being removed prior to the accident was its position within the lane and that, on the photograph, a metre to the left or right would have been within the wheel tracks.   He agreed that cyclists tend to be in the nearside wheel track if on their own. If not on their own, he would expect them to ride in single file, though he had seen them ride otherwise. 28.              A finding that this was a danger requiring remedial action would have massive implications, more inspectors, more resources. 29.              He was asked about the national code of practice which was couched in different terms, describing “Category 1” requiring prompt attention because it represents an immediate or imminent hazard and “Category 2”  as  “all other defects”.   He points out that the code does not provide mandatory standards. 30.              On resource implications he said that there would be many such defects at many different locations the noting and remedying of which would obviously take a longer time and require greater resources both for inspection and for remedying. 31.              Although the manual itself did not have threshold measurements in respect of some forms of defect though it did for others, he was happy for Mr Miles to say as he did in his witness statement. 32.              Pete Miles has been employed by Carillion as a highways safety inspector for the last 5 years, prior to which he was employed by the defendant for 15 years as a highways safety inspector.   He confirmed the system for inspection – two man driven inspections undertaken every 24 weeks from a slow moving vehicle.    The driver’s main focus is on driving the vehicle, the spotter’s main function is to identify dangerous defects. It is undertaken at 10-15 miles per hour with flashing beacons on the van.   He carries an inspection sheet,  lap top computer, pen, notepad, tape measure and white spray paint as well as basic materials and equipment to make dangerous defects safe in the short term.   Anything requiring remedial action would be marked up with white spray paint.   If a dangerous defect were noted the driver would stop, he would get out and take a photograph, make a note of the photograph number and mark it on the inspection sheet against the road name and put a cross on the form indicating a defect had been identified. 33.              He conducted the last inspection of Gospel Oak Lane on 19th December 2005 when he noted no recorded defect.   He also undertook the safety inspection before on 4th July 2005 when again he noted no recorded defect on Gospel Oak Lane. 34.              He is aware of the manual dated 2003 and the guidance for “Category 1” and “Category 2” defects.   He looked at photographs taken by Mr Yarwood the area surveyor shortly after the accident.   The location of the concrete lump in the middle of one side of the carriageway is not an area where he would expect a four or two wheel vehicle to encounter the defect and is not located in the area he would ordinarily expect a cyclist to have ridden.   It is a somewhat unusual defect.   It would be capable of being compared with ironwork if there were a vertical face.   In considering whether or not the concrete lump would represent a dangerous defect he would be looking specifically at the front facing edge encountered by oncoming vehicles, and would make a judgment whether it was a sharp vertical face or a gradual slope.   He would be using his own discretion and judgment against the guidance and criteria set out in the highways manual.   For him to have categorised the lump as requiring remedial action it would need to have had a vertical face on the front edge of some 50 millimetres or above.   In the event the lump had been within the ordinary wheel tracks of oncoming vehicles the threshold would have been somewhat lower, perhaps 20 to 30 millimetres, based on the increased risk that this would present.   He was confident that the lump observed did not have a vertical face of 50 millimetres or above and was located in the middle section of the carriageway.   Ultimately he did not believe it was dangerous and if he had observed it on a routine safety inspection he would not have identified it for remedial action.   He also believes it would have been easily identifiable given its colour as against the road surface. 35.              When undertaking routine inspections he has in mind all road users including cyclists. He cannot say whether it was present at the time of his inspections in July or December 2005.   If it had been seen he would not have requested remedial action to be taken. 36.              In oral evidence he said that if they had to stop for every defect it would have resource implications as they had to stop, mark and photograph each one and time is involved. It would not just cover concrete lumps but things like tree roots which lifted the highway and whose height would be hard to assess from a slow moving vehicle.   If items under 25 millimetres had to be recorded it would increase the number of defects dramatically. 37.              He agreed that a spillage like this was more hazardous to two wheeled than four wheeled vehicles.   He didn’t think groups of cyclists were part of normal traffic on a road such as this.   He thought a cyclist would ordinarily occupy the wheel track on the inside of the lane. 38.              He agreed that if any of the edge were 25 millimetres and within the wheel track with a vertical face he would stop and look at it.   He agreed that he would have had in mind four wheeled vehicles more than two wheeled vehicles though he agreed that this concrete lump was more dangerous to a two wheeled vehicle.   On the photographs you can see where the wheel tracks are because of the level of polishing on the road as distinct from the part where the concrete is located. 39.              Fred Yarwood was employed, until retirement in 2007, by the defendant since 1970 and as an area superintendent for highways since 1977.   He confirmed that Gospel Oak Lane is a rural category C road with driven inspections undertaken every 24 weeks.   The dates of the inspections prior to this accident were 4th July and 19th December 2005.   He noted that there was a public inquiry inspection of that road on 3rd March 2006.   He did not conduct it in person.   It arose from a complaint by a member of the public in relation to spot gritting work, he believed likely in relation to the presence of ice and snow.   As a result, a works order was raised for the gritter to attend.   Following the claimant’s accident a telephone complaint was received on 18th April.   As a result he attended the scene on 19th April and took photographs.   He cannot recall whether he specifically took measurements of the concrete lump or used his experience to estimate its height.   In his notice of accident document it confirms the measurement of the height of the concrete lump as 20 – 24 millimetres.   It is in the middle of one side of the carriageway and, as such, not in the normal wheel tracks of a four or two wheeled vehicle. The white beige concrete lump would stand out against the grey road surface, clearly visible from the brow of the hill with somewhere in the region of 70 metres line of visibility.   In his experience he would not have considered this of such significance as to request remedial works by their criteria.   Arising out of this complaint a works order was raised for the concrete lump to be removed within one hour.   The priority was because there had been an accident and the work was done on 19th April and the complainant Lucy Ryan was informed. 40.              In a further statement he confirmed that he had seen the concrete lump whilst driving through the area prior to the accident, though he cannot be sure how long it had been there.   He did not consider that the defect required remedial repair.   When the job was performed two operatives were concerned and the charge was for two hours labour, though it need not have taken that long, that being the minimum charge out period.  He would not have thought it would have taken anything in excess of 10 minutes.   A variety of ways could have been used, hammer and chisel, a kind of pick axe or simply using a shovel, or the easiest and least intensive method using a pneumatic drill or breaker to break up the concrete.   Regardless of the method it is unlikely that any damage would have been caused to the underlying road surface. 41.              In oral evidence he said that he had measured the height of the concrete spill, its highest and lowest point 20 to 24 millimetres.   He did not measure the vertical edge. He used a stick and tape measure to measure it, though he didn’t say this in his written statements. He measured the highest point in the centre of the spillage.   Expert evidence 42.              Mr Peter Dixon gave expert evidence for the claimant.   He is chartered civil engineer and Fellow of the Institution of Highways and Transportation.   He had given evidence in a report and also in a joint statement together with Mr Pringle for the defendant who is also a chartered civil engineer.   They agreed that neither had had the benefit of first hand examination.   Mr Dixon’s observations on site on 27th April reveal little if any evidence of the form of concrete.   The appearance of the concrete deposit in the contemporary photographs was consistent with it being the result of accidental spillage.  It was above the general level of the road surface. Its position was between the regular wheel lines of four wheeled traffic and had had the opportunity to set and gain strength without being broken up by passing vehicles.   Had it been on a wheel line it would probably not have survived early age attrition, at least to the height shown by the contemporaneous photographs.   The concrete was a contaminant on the surface of the road.   Mr Pringle said that it was probable that the concrete had been present for at least a few months.   Mr Dixon was unable to offer an opinion.   They were agreed that the height of the concrete appears to have been in the order of 20-25 millimetres and the dimensions of the two spillages were respectively 0.75 metres by 0.125 metres and 1 to 1.2 metres by 0.10 to 0.15 metres. 43.              They agreed that the concrete was bonded to the road.   It is a brittle material but is strong in compression.   If struck with an appropriate implement the concrete would break up.   If the lumps were well bonded to the road surface it would probably have taken many individual blows from such an implement to remove them completely.   There was no discernable evidence of consequent damage to the road resulting from the work undertaken to remove the lumps indicating the probable use of hand tools.   They agreed that the function of a road surface is: i)                    To support traffic ii)                   To be durable iii)                 To resist water penetration   iv)        To provide an appropriate level of skid resistance. 44.              They did not agree as to whether the concrete became a part of the structure of the road.   Mr Dixon thought it depended on the degree to which the concrete had adhered to the road surface.   Mr Pringle considered that the spillage failed to fulfil, and was never intended to fulfil, the functions of a road surface and therefore the concrete is no more than a contaminant lying above the prevailing level of the road surface. 45.              Mr Dixon said in oral evidence that if concrete is spilled and left undisturbed it sets typically after 24 hours to 2 – 3 days.   It is feasible that this concrete had been present for many months but he could not say how long, possibly 12 months.   It was not possible to remove it without tools of some form.   Concrete is not often used for repair of roads, it is more a structural product.   He agreed with Mr Pringle, who said in his report that concrete spilt on such a surface forms a bond utilising interlock at both the macro and sub microscopical levels and any chemical bonding to exposed aggregate.   He amplified what he meant by macro interlocking.   The concrete fills the small voids in the surface and interlocks in those spaces.   At the sub microscopic level there would be a weak bond and an element of chemical bonding.   He agreed that the underlying surface of the highway was as if the concrete spillage had never been there.   It was undamaged. There was no alteration in the surface as a result of having had concrete on it.   The absence of peck marks from a pneumatic drill suggested that hand tools had been sufficient rather than power tools.   It could be removed by using the back of a shovel either to get under it or break it at right angles.   It looked as though there had already been some erosion of the concrete, the edges eroded by the mechanisms of traffic or weather, though he wasn’t in a position to know how much traffic.   If it had been in the natural line of wheels it would have been chipped away quickly, the fact that it was set means vehicles were not hitting it very often. 46.              Mr Pringle, in addition to giving evidence in accordance with the joint statement, agreed that concrete was not ideal to fill pot holes.   In his report he said that the surface of a road has a texture, a lack of smoothness, a concrete spillage would penetrate the gaps and solidify in them forming a mechanical lock with material below on the macro scale. There would not have been any chemical bonding in this case as the aggregate used on the road was not of the type which would cause a chemical bonding. 47.              He too agreed that there was no alteration in the surface of the carriageway but he also agreed that the concrete had bonded to the existing surface.   Once it had set, without it being forcibly removed, it was unlikely to disappear from the road surface.   The mechanism of removal would either be deliberate, or the attrition of vehicles resulting in degradation then dispersal.    He said it was credible that it could have been present for several months, or a year or more, and it would take many blows from an implement, such as a shovel, to remove it.   He didn’t think that the type of aggregate used on this road would have resulted in a chemical reaction with the concrete.   He agreed with what he said in his report, that the road may have been wet when the concrete fell in which case it would have enhanced the strength of the bond likely to be achieved. 48.              Mr Dixon also provided a joint statement with Mr Robert Luck, a highways engineering consultant.   On the question of road maintenance they agreed that the best practice guidance is contained in the national code of practice published in July 2005.   They had seen no confirmation that the defendant used or conformed to this code of practice, however they were not critical of the 24 week frequency of the safety inspections used by the defendant for Gospel Oak Lane and agreed that this was likely to be most appropriate.   They agreed that the code of practice does not provide standards for maintenance and is non mandatory but it also provides an appendix B, a schedule of suggested deficiencies to be identified during a safety inspection, which is non exhaustive and provides three examples of investigatory levels for certain types of defect applied by: Westminster City Council; Perth and Kinross Council; and the Northern Ireland Road Service. 49.              They agree that a defect formed by deposited concrete on carriageways is not covered by the code of practice or in the examples used by the three local authorities, but the code of practice intends that “safety inspections are designed to identify all defects likely to create danger or serious inconvenience.” The code of practice defines defects in two categories – “Category 1” which require prompt attention, “Category 2” all other defects. 50.              If the deposited concrete were to be judged against the defect items in the code, they agree that there were no directly comparable items in the code of practice but thay are agreed that it is possible to compare this defect to “abrupt level differences in the running surface”.   They agree that, in relation to that type of potential defect, Westminster refers to a 20 millimetre investigatory level with no distinction for cycle usage.   Perth and Kinross refer to other abrupt level differences exceeding 40 millimetres in all road categories.   The Northern Ireland Road Service which relates to business plan targets, is not clear, though it might be inferred that only defects greater than 100 millimetres in depth will be repaired within 5 days. 51.              They agreed that the defendant’s manual contained little guidance to inspectors on a variety of different defects found on carriageways only dealing specifically with pot holes and edge deterioration.   The manual does not provide any guidance which might be directly applicable to this case.   They also agreed that the deposited concrete appeared to be 20-25 millimetres high overall. The law 52.              In Mills v Barnsley NBC [1992] PIQR P291 Lord Justice Steyn at p.292 – 293 set out the matters which must be proved by a claimant in a case such as this: “In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that: a)  The highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public; b)  The dangerous condition was created by the failure to maintain or repair the highway; c)   The injury or damage resulted from such a failure. Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority reliance on the special defence under s.58(1) of the 1980 Act namely that the authority had taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic.   On this aspect the burden rests on the highway authority.” 53.              The approach to the issue whether a state of affairs in the highway is a danger has been described by Lord Justice Denning in Morton v Wheeler 31 January 1956 Bar Library transcript number 33 cited with approval by Lord Justice Edmund Davies in Dymond v Pierce 1972 1QB 496 at 505: “…how are we to determine whether a state of affairs in or near a highway is a danger?…this depends, I think, on whether injury may reasonably be foreseen.   If you take all the cases in the books you will find that if the state of affairs is such that injury may reasonably be anticipated to persons using the highway, it is a public nuisance,…but if the possibility of injury is so remote that he (the reasonable man) would dismiss it out of hand saying “of course it is possible but not in the least probable” then it is not a danger.” 54.              It is common ground that all users of the highway, those using four and two wheeled vehicles as well as pedestrians, should be taken into account.   The claimant accepts that the court should be alert not to impose an unreasonably high standard on the authority when determining whether a particular state of affairs constitutes a danger.    Lord Justice Steyn in Mills at p.295 said: “It is important that our tort law should not impose unreasonably high standards otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed.   This branch of the law ought to present a sensible balance of compromise between private and public interest.” In the same case he has warned against the risk of mechanical jurisprudence and that the test of dangerousness is one of reasonable foreseeability of harm to the users of  the highway – each case will turn on its own facts. In the same case Lord Justice Dillon said at p.295: “Liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all.   The question is whether a reasonable person would regard it as presenting a real source of danger obviously in theory any irregularity any hollow or any protrusion may cause danger but that is not the standard that is required.” 55.              An approach which is commended to the court is that of Mr Justice Eady in Galloway v Richmond-upon-Thames LPC 2003 WL 933585 in which at paragraph 18 he said as follows: “…I would classify the configuration recorded in the pictures as “unremarkable” and not such as to give rise to “a real source of danger” attempting as I must achieve a sensible compromise between the public interest in the prudent management of limited resources and the private interests of the reasonably attentive pedestrian I believe that the Recorder’s decision tilts the balance (as happened in the Mills case) too far in favour of the unfortunate pedestrian…” ·        Section 41 and the extent of its application 56.              Section 41 of the Highways Act 1980 provides: “The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty subject to sub sections 2 and 4 below to maintain the highway…” Section 329(1) provides that “maintenance includes repair and maintain and maintainable are to be construed accordingly.” 57.              Section 41 has been the subject of considerable litigation at appellate level. 58.              The main focus of these cases has been the extent to which the s.41 duty applies where the surface of the highway remains intact, but the difficulty for pedestrians, or those using vehicles on the highway, arises from obstructions or contamination of the surface with various deposits such as snow, ice, mud and water.   In Burnside v Emerson [1968] 1WLR 1490 the Court of Appeal (Lord Denning MR delivering the leading judgment) had to address the Highways (Miscellaneous Provisions) Act 1961 to be read with the Highways Act 1959.   Under those Acts the rule exempting a highway authority for non feasance was abolished and, instead, there was imposed a statutory duty on a highway authority to maintain the highway, “maintain” including repairs.   If it was out of repair they failed in their duty and, if damage resulted they may be liable unless they proved that they used all reasonable care.   Lord Denning identified the action involved three things.   The second was described by him in the following terms: “The plaintiff must prove that the dangerous condition was due to a failure to maintain which includes a failure to repair the highway.   In this regard a distinction is to be drawn between a permanent danger due to want of repair and a transient danger due to the elements.   When there are pot holes or ruts in a classified road which have continued for a long time unrepaired it may be inferred that there has been a failure to maintain.   When there is a transient danger due to the elements be it snow or ice or heavy rain the existence of danger for a short time is no evidence of a failure to maintain…” (page 1494). 59.              In the same case Lord Justice Diplock said as follows: (pp 1496 to 1497): “The duty of maintenance of a highway which was, by s.38(1) of the Highways Act 1959 removed from the inhabitants at large of any area and by s.44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular time but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition…” 60.              In Hereford and Worcester County Council v Newman 1975 1WLR 901 Lord Justice Cairns at p.911 said as follows: “I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way.   Not every defect in the surface would constitute being out of repair, eg, an icy road would not in my view be out of repair but if the surface is in a proper condition I do not think it can ever be said that the highway is out of repair…the two other paths have a substantial growth of vegetation in them. That vegetation no doubt constitutes an obstruction but it must also interfere with the surface of the paths.   If there had been merely branches and thorns overhanging from the sides of the footpaths I should not consider that they were out of repair but I understand that a hawthorn hedge in one case and thick undergrowth in the other is actually rooted in the surface of the paths.   With some hesitation I am of the opinion that this did cause the paths to be out of repair…” (See 61.              In the same case Lord Justice Lawton at pages 991 to 912 gave a historical account of the then statutory provisions.   He said as follows: “The inhabitants at large were only responsible for want of reparation.   Individuals were responsible for obstruction and encroachments.   This distinction was reflected in the general Highways Act 1773 (13 Geo 3,C78)…” 62.              In Haydon v Kent County Council 1978 1QB 343 Lord Denning MR in a dissenting judgment subsequently approved by the House of Lords in the case of Goodes said as follows at page 357A: “The word “repair” “Repair” means making good defects in the surface of the highway itself so as to make it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition…thus deep ruts in cart roads, pot holes in carriage roads, broken bridges on footpaths or bushes rooted in the surface make all the highways out of repair The word “obstruction” An “obstruction” to a highway occurs when it is rendered impassable or more difficult to pass along it by reason of some physical obstacle.   It may be obstructed without it being out of repair at all.   If a tree falls across a road it may not injure the surface at all, it may even straddle if without touching the surface.  The road is then obstructed but it is not out of repair.   If a barbed wire fence is across a footpath or if bushes and branches overhang it the footpath is obstructed but is not out of repair.   See Worcester County Council v Newman…so also if a highway is blocked by a fall of snow or by a landslide without injuring the surface of the road the highway is obstructed…but is not out of repair.” 63.              In Goodes v East Sussex County Council [2000] 1 WLR 1356 the complaint under section 41 of the 1980 Act concerned an alleged failure to salt or grit a road where there had been a weather forecast of freezing conditions which resulted in black ice on the road on which a car skidded and crashed causing very serious injuries to the driver. Lord Hoffman gave a speech with which their other Lordships agreed.   He too conducted a historical and conceptual survey of the history of s.41.   He rejected the argument that the duty as it had been expressed in the 1959 Act should, nonetheless, be developed so as to move with the times, on the basis that public expectations change and that what might have been regarded as sufficient in Victorian days would not necessarily be adequate in 1959 or now. Vehicles moving at much higher speed makes ice on the roads a far greater hazard.   Lord Hoffman, acknowledging the argument to be attractive, did not accept it.   He said as follows: “…it must be remembered that the duty in question is an absolute one and in this context there seems to me to be an important difference between a duty to maintain the fabric of the road in good repair and a duty to prevent or remove the formation or accumulation of ice and snow…the requirements of that objective test may become more exacting with the passing of the years but the court…can examine the highway and decide whether it meets the test or not.   The highway authority can by periodic inspection preventive maintenance and repair keep the highway in accordance with the necessary standard.   If it does not it can be ordered by the court under s.56(2) of the Act of 1980 to put it in proper repair within such reasonable period as may be specified in the order.   But an absolute duty to keep the highway free of ice would be an altogether different matter.   No highway authority could avoid being from time to time in breach of its duty which would apply not merely to fast carriage roads but to all highways including pavements and footpaths and the machinery of the Act for enforcement of liability for maintenance (sections 56 to 58) would hardly be appropriate.   There would be no question of ordering the highway authority to comply with its duty.   In the present case the highway would have been properly maintained except for the period between when the ice formed at dawn and when it melted an hour or two later.” Lord Hoffman then considered Haydon v Kent County Council and the approach of the majority in that case.   He recognised the sense in what the majority had decided but concluded that he could not approve the majority’s decision in the following terms: “It appears to incorporate considerations more appropriate to the statutory defence under s.58 and although it is said there is a breach of duty when it is prima facie unreasonable not to have taken remedial measures I find it hard to imagine a case in which the highway authority could be held in breach of duty but succeed in making out the statutory defence. …there is obviously a case for saying that a person who suffers a catastrophic accident as a result of the presence of ice which in modern conditions the highway authority could reasonably have prevented or removed should have a remedy.   I say nothing about whether the facts of the present case fell within this description, a question on which the Court of Appeal were divided, but I am quite satisfied that Parliament had not yet provided such a remedy and that, in debating whether to do so, it is likely to wish to consider the question of fairness to other plaintiffs who have suffered injuries otherwise than by negligence as well as the resource implications for local authorities and the criteria by which their efforts should be judged…” His Lordship then concluded that he did: “not think it an admissible construction of section…41(1) of the Act of 1980 to hold that it was capable of judicial extension to create a duty not only more onerous but different in kind from that which had existed in the past”. 64.              In the same case Lord Clyde at p.1369 said as follows: “Where the physical surface of a road has become smooth giving rise to a danger in wet conditions the addition of sand to supply the grittiness which the roughness of the fabric of the road would formerly have possessed can be described as repair or maintenance.   That was the case in Dublin United Tramways Company Ltd v Fitzgerald 1903 AC 99…where as Lord Robertson observed the surface of the roadway was part of the structure or fabric of the roadway and if the authority used materials having a kind of surface which would be in bad condition in wet weather they must from time to time supply by sand to this material what other materials might of themselves in all conditions supply by the roughness of their own surface.   But that situation is quite different from the removal or dissolution of something which has been superimposed upon the surface of the highway where the surface is in itself in good condition.” 65.              It is to be observed that after the decision in Goodes the 1980 Act was amended with effect from 31st October 2003 to add a new sub section to s.41.   Sub-section 1A provides: “In particular a highway authority are under a duty to ensure so far as is reasonably practicable that safe passage along a highway is not endangered by snow or ice”. 66.              The most recent decision at appellate level on this issue is Valentine v Tfl and another [2010] EWCA Civ 1358 2010 WL 4919800.   This was an appeal by the claimant against a strike out of her claims arising from what was alleged to be an unsafe accumulation of surface grit at the edge of the highway.   The claim against the highway authority, TFL, was put squarely on the basis of breach of s.41.   At paragraph 8, dealing with the claim against TFL, Lord Justice Hughes said as follows: “The judge struck out the claim against TFL on the simple basis that the duty to maintain does not extend to a duty to remove surface lying material, obstructions or spillages whether or not they result in some danger.   In my view that conclusion was inescapable.   The law is very clearly established by the two leading authorities on such material the first is the minority judgment …in Haydon…the second is the decision of the House of Lords in Goodes…which is binding upon us and in which the judgment of Lord Denning in Haydon was adopted and emphatically endorsed…the duty imposed by s.41 is a duty to maintain the fabric of the road including its sub structure such as its drains.   The removal of surface lying material which creates a danger is not in the section.” His Lordship, at paragraph 26, elaborated on the question of different sources and different duration of surface lying material in the following terms: “…What they and similar observations do not mean is that there is a relevant distinction to be drawn between the removal of surface lying material which got there by direct operation of the elements as did the snow and ice in Goodes and the removal of surface lying material which has arrived by some other process as the grit or debris in the present case would appear to have done.   Nor do they mean that there is a duty to remove long standing surface lying material but not material which is of recent origin.   Of course it is true that if there were a duty to remove surface lying material then a private law civil action the length of time that it had been there would be relevant as to the statutory defence but that point is as the law stands never reached.” The statutory defence 67.              If s.41 bites, then s.58 of the 1980 Act provides a special defence for a highway authority against a claim for damages for non repair of the highway.   The section provides as follows: “1.  In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence…to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic. 2.  For the purposes of a defence under sub-section 1 above the court shall in particular have regard to the following matters: a)   The character of the highway, the traffic that was reasonably to be expected to use it b)   The standard of maintenance appropriate for a highway of that character and used by such traffic c)   The state of repair in which a reasonable person would have expected to find the highway d)   Whether the highway authority knew, or could reasonably be expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway e)   Where the highway authority could not reasonably be expected to repair that part of the highway before the cause of action arose what warning notices of its condition had been displayed? But for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent to carry our or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.”                    Submissions and conclusions The cause of the accident 68.              The claimant’s case is that the collision between the front wheel of the bike and the concrete adhered to the surface of the road was the cause of the accident.   Although the claimant has no recollection of the accident Mr Thomson, who was riding either directly behind or one cycle away from the claimant, was a direct witness of what happened.   Although he did not see the wheel strike the concrete he heard it do so and observed the claimant immediately fall.   The defence has no positive case to put in this respect.   However, they suggest that Mr Thomson’s evidence is insufficiently credible for me to be satisfied on the balance of probabilities that he is correct in describing what he heard and saw.   It is suggested that his lack of credibility derives from the fact that, in his written witness statement, he did not say that he had only heard the strike of the wheel against the concrete but said that “John’s bike hit the concrete causing him to lose control before falling off and hitting the road…”.   It was suggested to Mr Thomson that the cause of the accident might have been the claimant’s front wheel coming into contact with the bike in front.   Mr Thomson said that the noise of that would have been completely different from the noise which he heard.   It was also suggested that, at some point on the day, some unidentified person had informed the ambulance personnel that he had “lost control of bicycle on hill/gravel on tarmac road”.   Mr Thomson denied that he had spoken to any ambulance person as did the other witnesses called by the claimant.   It is true that there seems also to have been another person there, a Mr Towers, from whom no proof or witness statement was taken.   However, the claimant points out that the photographs of what everybody admits is the general site of the accident on the road reveals no loose gravel whatsoever anywhere in sight. 69.              In my judgment Mr Thomson was both a truthful and an accurate witness.   I accept his evidence and, accordingly, I am satisfied by that evidence, on the balance of probabilities, that the cause of the accident was, as the claimant claims, his front wheel striking the concrete. Does section 41 apply? 70.              There is no dispute about the relevant legal principles.   The dispute is whether, on the facts of this case, the concrete, having become firmly bonded to the road in the manner described by Mr Dixon and Mr Pringle, has thereby become part of the fabric of the road, or part of the surface of the road, which, by virtue of its presence as part of that fabric or surface, has caused the road to fall into disrepair.   It is common ground that, if it is not part of the surface or fabric of the road but is a surface lying spillage or contaminant, albeit one which has become affixed to the surface of the road, s.41 cannot apply because it is common ground that it was removed without the underlying surface of the road having been damaged in any way. 71.              The defendant argues that the concrete is in the same category as oil or mud.   The mere fact that it has solidified into a mechanical bond does not alter that position.   Reliance is placed on the fact that there was no intention that the concrete should become part of the fabric or surface of the road because it is common ground that it was spillage which was caused accidentally.   Nor does the fact that it may have been long standing, surface lying, material affect the decision if, in truth, it was no more than a surface lying contaminant.   It is said that it is analogous to chewing gum which may become hard and fixed to the road by mechanical bond, or mud, which may harden and become fixed to the road by a mechanical bond.   In this latter example there is a recent case Kim Ali v City of Bradford MDC [2010] EWCA Civ 1282 in which such a claim, was originally put in terms of s.41 of the Highways Act. The claimant abandoned the s.41 claim before trial thereby, implicitly, acknowledging the force of the analogy with hardened concrete. 72.              The claimant says that, in this case, the concrete, which is hardened, does become part of the surface or fabric of the road.    The fact that it is spilt by accident rather than deliberately placed on top of the surface is neither here nor there.   All the other cases were cases where it could not be said that the ice, or snow, or water, or mud, or leaves, had become part of the fabric or surface of the road.   They were all essentially transient, or were there because of the weather, or the season, whereas it was common ground that, the concrete had so hardened and bonded itself to the road that it required the use of an implement such as a shovel and many blows to chip it away, albeit it could be done manually and without damaging the underlying surface. 73.              Thus it is argued that, in this case and on these facts, the fabric of the road has been altered so that it not only comprises tarmac but, at this particular point, it comprises tarmac on top of which, as part of the fabric, is hardened ready mix concrete.   The fabric has been changed and, because it presents a sudden increase in the level, it constitutes disrepair, the removal of which, and the restoration of the previously existing state of the road surface can properly be described as “maintenance” of the road in the statutory sense. It is said that the change evinced by the hardening of the concrete constitutes a permanent change in the fabric of the road, unless or until the means already described to chip it away and remove it are employed. 74.              In my judgment there is a difference in kind between, on the one hand, concrete which has hardened and bonded permanently to the surface of the road, unless and until removed by the action of a road mending gang, and, on the other, contamination of the road surface by surface lying contaminants such as ice, or oil, or mud or snow.  In the former case the concrete has become part of the fabric of the road whereas in the latter it is merely lying on top of the surface of the road. The fact that the accretion to the fabric of the road surface was accidental rather than deliberate is irrelevant.    The fact that, in the absence of specific intervention by a road mending gang, the change in the fabric caused by the bonding of the concrete to the previous road surface will be permanent, or at least long lasting, is, in my judgment, sufficient to bring it within s.41. Was the highway in such a condition that it was dangerous to traffic or pedestrians in the legal sense? 75.              The claimant says that it was.   It could reasonably have been foreseen that a group of cyclists, not riding in single file, would use the highway and, accordingly, that cyclists would, from time to time, ride down the middle of the west bound carriageway at some speed, particularly when riding downhill.   Further, it is said that the evidence is that the concrete protruded above the unaffected part of the surface of the highway up to a height of 25 millimetres (Mr Harding) or 24 millimetres (Mr Yarwood) and the larger spill was approximately 1 metre long and 10 cms wide, which presents a substantial obstacle for a two wheeled vehicle to strike without accident.   Finally, the claimant says that, in fact, it was dangerous because the claimant, riding a bicycle, was unable, when striking it, to control his bicycle and avoid falling off. 76.              The claimant relies on the evidence of Mr Miles in this respect. In particular, his evidence that, acting pursuant to the discretion given him by the manual, he would have reported the spillage, as having crossed the threshold for remedial action, if it had presented a vertical face as low as 20 millimetres, provided it was sited within the ordinary wheel tracks.   Mr Miles agreed in his evidence that he would not have regarded this concrete spillage as having crossed that remedial threshold because of its location. It was not in the ordinary wheel tracks of oncoming vehicles.   He accepted that, in so deciding, he focussed on 4 wheeled vehicles not 2 wheeled. He accepted that two wheeled vehicles were more at risk faced with this disruption to the, otherwise, smooth surface of the road. 77.              The claimant says that the manual defines defects giving rise to a report as those which are, or are likely to create, a danger to the public. Thus, if Mr Miles ought properly to have exercised his discretion by reporting this spillage, albeit not in the normal wheel tracks, then that goes a long way towards demonstrating that, in the legal sense, it was a danger, because Mr Miles, operating the system, may be said to evidence a fair balance between public obligation and private rights. 78.              Furthermore, insofar as he was unable, pursuant to the way the Defendant’s manual was drawn up, to report this spillage as a “Category 2” defect because it was not one which was likely to become a “Category 1” defect, the defendant has disabled the likes of Mr Miles from taking a proper, sensible decision on the question whether a defect in the road surface is sufficiently dangerous to amount to a defect calling for remedial action, albeit not urgently. The claimant contrasts this to the way the code of practice, though not mandatory to be followed, is framed which would have permitted Mr Miles to have reported this as a defect. 79.              The defendant says that this was not a foreseeable source of danger for the type of traffic, including groups of cyclists, which would normally use this road.   It is said that the evidence of the defendant’s inspectors and supervisors, Mr Yarwood and Mr Miles, respectively, that they did not, and would not, consider this spillage to be a defect requiring reporting on grounds that it was a danger to the public is persuasive evidence that it is not.   It is said that I should accept the evidence of Mr Miles and Mr Allinson that, were it to be so, it would substantially increase the number of such items as needed to be reported which, in turn, would have such a knock on effect on the resources required to deal with such matters that it would result in an imbalance between the public and private interest. 80.              I am reminded that in Mills Lord Justice Steyn at p.294 said: “Such mechanical jurisprudence is to be discouraged.   All one can say is that the test of dangerousness is one of reasonable forseeability of harm to the users of the highway and that each case will turn on its own facts.” Thus the precise measurement of the spillage, and whether or not it falls precisely within a pre-ordained assessment of the relevant height of a vertical face is not to be determinative. Rather, the test is one of reasonable forseeability of harm when seen in the context of the law requiring a sensible balance, or compromise, between private and public interest.   I am also reminded that, in James v Preseli Pembrokeshire District Council 1993 PIQR P114, Lord Justice Lloyd at 117 cited his approval a dictum of Lord Justice Stephenson in Lawman v London Borough of Waltham Forest on 23rd January 1980: “…In my judgment a defect can call for repair, even for urgent repair, and even if there has been no accident, without its already having become dangerous or likely to cause danger to persons walking along the pavement.” Thus the mere fact that, under the manual, Mr Miles might have, or ought to have, reported this spillage is not in itself determinative of the question of danger in the legal sense. 81.              In my judgment applying the test as it has been formulated and refined in the cases to which I have referred, having regard to the evidence of Mr Allinson and Mr Miles about the resource implications, having regard to the measurements of the concrete and its estimated or measured height above the surface and having regard to its appearance as revealed by the photographs taken by Mr Harding on the day following the accident, this was a real source of danger on the basis of it posing a reasonable possibility of harm to the users of the highway.   This is a relatively quiet country lane, the type of road along which groups of cyclists not necessarily riding single file, would constitute part of the normal traffic in the ordinary course of human affairs.   The spillage’s size and nature, as well as its position in the centre of the west bound carriageway where cyclists, not cycling in single file might reasonably be expected to ride, is such that it was reasonably foreseeable that a cyclist, coming into contact with it, would lose control of his bicycle, fall off and be injured.    Although its colour and texture is different from the surrounding surface, its position on a downhill slope going into a left hand bend is such that foresight of its presence would be somewhat limited but, in my judgment, the question whether a particular rider, riding within a group, would have been expected to see it in sufficient time to take avoiding action is a matter not affecting the reasonable foresight of danger, but affecting the contribution of the cyclist to that danger eventuating in an accident causing injury. 82.              The fact that there is no evidence of any previous accident involving this spillage of concrete and the fact that its position was such that it was not greatly eroded by the frequency with which wheeled vehicles ran over it are not determinative in the defendant’s favour.   In my judgment the size, height of the protrusion above the underlying surface and its position, right in the middle of the carriageway, is such that this is not a case where the response of the reasonable person to the question “would injury to a person using the highway by riding a bicycle within a group and riding in the centre of the lane be possible but not in the least probable” would be answered by the answer “No”. 83.              In my judgment, the fact that Mr Miles in his evidence indicated that he would regard a spillage on such a scale within the normal wheel track path as sufficiently dangerous to report it for remedy is of considerable significance.   He accepted that such a spillage would be particularly dangerous for a cyclist.   In my judgment he was in error in failing to consider the position of a cyclist as being particularly put at risk by such a spillage, even in the middle of the carriageway, where a cyclist not riding in single file or on his own could be expected to ride. 84.              Other than assertion, no evidence has been put before me of the extent to which, regarding this particular spillage as potentially dangerous, would have an impact on this defendant.   It is clear that a spillage of this dimension would be capable of being picked up by the current system of inspection.   There is no evidence as to the frequency with which this kind of spillage is to be found, in the wheel tracks and elsewhere.   The resource implications of this particular spillage would have been minimal, both in terms of reporting it and taking remedial action.   Accordingly, in my judgment, on the evidence placed before me, this is not a case where the balance between the public and private interest is tipped unduly in favour of the private and against the public by characterising this spillage as dangerous in the legal sense. Does the defendant have a s.58 defence? 85.              There is no doubt, on the basis of the agreed evidence of Mr Dixon and Mr Luck, that the system which the defendant has in place for conducting safety inspections of this road does meet the requirements of s.58, both as to frequency and the way in which the inspection is carried out.    Equally it is clear that the defendant did carry out their safety inspections in accordance with the manual, both as to frequency and as to the method employed. 86.              The problem for the defendant is that there either was, or would have been, a deliberate decision by Mr Yarwood and/or Mr Miles not to have reported this spillage pursuant to their system.   By my finding that the spillage did constitute a danger, applying the legal test, in my judgment it must follow that, in this particular respect, the system would have failed to have picked up a dangerous defect and, therefore, the s.58 defence would not be available, if the spillage was already there at the time when the last of the safety inspections took place in accordance with the timescale provided by the system, that is to say, on 19th December 2005. 87.              The defendant has sought to argue that, even if it was dangerous the defendant is entitled to the benefit of the s.58 defence even if the spillage was present at the time of previous inspections.   In my judgment that is a hopeless argument.   On the facts of this case, even if in some other case there might be a theoretical possibility of that being so, the fact is that the system, which was reasonably put in place in order to identify defects which were dangerous, would not, on my finding, have been sufficient in its framing or applied so as to do so in this particular instance.   Thus, the party engaged by the defendant to carry the system into effect failed, in this instance, to do so and, accordingly, the defendant will not have the benefit of the s.58 defence if the spillage was present on the 19th December 20045. 88.              In my judgment, on the evidence, it was.    Mr Thomson’s evidence is that the deposit had been there more than 12 months.   Ms Ryan’s evidence was that she had seen it prior to the accident when she had ridden with the club.   She had last ridden with the club in August/September 2005. Thus it would have been there on 19th December.   Mr Yarwood’s evidence was that he had seen it prior to the accident, though he could not remember when.   Thus, the evidence is all one way. It had been there for some time and two witnesses put it there on a date prior to 19th December.   In my judgment, the fact that no one had previously reported it or complained about it is of little weight.   As a matter of human nature these things tend not to get reported until an accident happens, which it did on 16th April and was immediately reported.   Thus, in my judgment, the claimant has established that the spillage was present prior to 19th December 2005 and was there when the previous inspection took place.   Accordingly, it follows that the s.58 defence is not available to the defendant. Contributory negligence 89.              The claimant’s evidence was in some respects startling.   He was riding in a group of 19 or so.   They were riding in rows of two, which is normal and which in itself cannot be said to be negligent.   However, insofar as he can remember, prior to the incident he was riding his racing bike with very narrow tyres and no tread.   In his first statement he remembered he was travelling about 25-30 mph.   In his second he says he was told it was 20-25 mph.   There were cyclists in front of him and cyclists behind him.   His normal position would be on the outside lane.   His normal position when in a group was 5 to 6 inches of the back wheel of the bike in front and he was in the middle of the group with cyclists to his front and cyclists to his rear. 90.              Although he does not remember the accident itself or the lead up to it it is common ground that they were going downhill into a left hand bend picking up speed.   In my judgment, someone cycling, within a group, going downhill, into a bend, at a speed in excess of 20 mph, who rides within 5 or 6 inches of the rear wheel of the bike in front is failing to exercise due care for his own safety.   He thereby removes any meaningful ability to see what is coming up on the road ahead or to be in a position to take any meaningful avoidance action if some danger appears on the surface of the road, as was the case here. 91.              Mr Thomson, also a highly experienced cyclist, indicated that his normal cycling distance within a group was half a metre, some three times the distance the claimant says was his norm.   I am satisfied from the evidence that the claimant would have been travelling at that very short distance from the cyclist in front of him on this occasion.   In my judgment, by riding in that way, at that type of speed, on a downhill, going into a bend, he was acting negligently and contributed directly and substantially to the fact that he was unable to avoid the concrete spillage and, as a result, suffered the accident the subject of this claim. 92.              In my judgment the defendant is right to say that, in all the circumstances of this case, the claimant must bear the preponderant part of the blame. If he had been travelling at a safe distance from the cyclist in front he would have been able to see what was coming up in sufficient time to have made the minor adjustment to his course which would have enabled him to avoid running into or over the concrete spillage.   In my judgment there is contributory negligence of 60%. Summary 93.              In  my judgment the claimant has succeeded in establishing the liability of the defendant under s.41 of the Highways Act 1980 but the defendant has succeeded in establishing that the accident was contributed to by the claimant to the extent of 60%. 94.              This judgment will be handed down.   If the parties wish me to make any further directions as to the future of the conduct of this litigation they may do so in writing and/or if they wish, they may attend the hand down.   Such attendance is not required if they do not wish to make any oral argument in respect of any outstanding matters.