Thomas v Warwickshire County Council

Highway authority – Statutory duty – Negligence – Claimant suffering injury owing to spillage of concrete on highway — Claimant seeking damages against defendant highway authority for personal injury — Whether defendant failing duty to maintain highway under Highways Act 1980 — Whether claimant contributorily negligent – Claim allowed in partThe claimant sustained a significant head injury when he fell from his bicycle while along a highway in the defendant local authority’s area. He alleged that the road was in a dangerous condition following a spillage of concrete, which had caused him to fall from is bicycle. He contended that the defendants had failed to maintain the highway in breach of their duty under section 41 of the Highways Act 1980.The claimant commenced proceedings against the defendants for damages for personal injury for their failure to maintain or repair the highway. At the trial of liability and contributory negligence (apart from alleged contributory negligence on the ground that the claimant was not wearing a safety helmet which was to be determined on a later occasion), the court had to consider whether: (i) the highway was dangerous for traffic; (ii) the danger arose from the defendants failure to maintain the highway pursuant to section  41 of the 1980 Act; (iii) the danger had caused the claimant’s accident, which raised the question of the statutory defence under section 58 of the 1980 Act; (iv) if the first three issues were determined in the claimant’s favour, the defendants had nevertheless taken such care as was reasonably required to secure that the highway was not dangerous for traffic; and (v) if the defendants were liable to the claimant, the claimant’s damages should be reduced for contributory negligence. Held: The claim was allowed in part. The court was satisfied, on the balance of probabilities, that the accident had been caused when the front wheel of the claimant’s bicycle struck struck the concrete. The issue was whether the concrete, having bonded to the road, had thereby become part of the fabric of the road or its surface, causing the road to fall into disrepair. It was common ground that if it were not part of the surface or fabric of the road but was a surface-lying spillage or contaminant, albeit one that had become affixed to the raod surface, section 41 could not apply because could be removed without the underlying surface of the road being damaged.There was a difference in kind between concrete that hardened and bonded permanently to the surface of a road and contamination of a road surface by surface-lying contaminants such as ice, oil, mud or snow. In the former case, the concrete had become part of the fabric of the road, whereas in the latter it was merely lying on the surface. The fact that the accretion to the fabric of the road surface was accidental rather than deliberate was irrelevant. If the change in the fabric caused by the bonding were permanent or long-lasting, that was sufficient to bring it within section 41.The test was 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. Applying the test as formulated by the courts, having regard to the measurements of the concrete and its height above the road surface it represented a real source of danger in that it gave rise to a reasonable possibility of harm to the users of the highway. This was not a case in which the balance between the public and private interest was tipped unduly in favour of the latter by characterising the spillage as being dangerous in the legal sense: Burnside v Emerson [1968] 1 WLR 1490; Haydon v Kent County Council [1978] QB 343; Goodes v East Sussex County Council [2000] 1 WLR 1356 and Valentine v Transport for London [2010] EWCA Civ 1358; [2011] BLR 89PLSCS 309 considered; Mills v Barnsley Metropolitan Borough Council (1992) PIQR P291 applied. There was no doubt that the defendants’ system for conducting safety inspections of the road met the requirements of section 58. Moreover, the defendants had carried out their safety inspections in accordance with their manual in terms of frequency and method. However, the party engaged by the defendants to carry out the inspection had failed in this instance. The defendants could not have the benefit of the section 58 defence because the spillage had been present when the last safety inspection had been carried out. With regard to the claimant’s contributory negligence, he had by travelling close to the cyclist in front of him and at speed on a downhill stretch into a bend, acted negligently and contributed directly to the accident. He had to 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 ahead in sufficient time and could have made the minor adjustment to his course that would have enabled him to avoid running into or over the concrete spillage. Accordingly, there was contributory negligence in the proportion of 60%.Nigel Poole (instructed by Ralli Solicitors) appeared for the claimant; Catherine Brown (instructed by Weightmans LLP) appeared for the defendants.Eileen O’Grady, barrister