Rare defect inssufficient for new inspection

Ms Harrison tripped ad fell while while walking along the pavement in August 2005. It was not disputed that herfall was a resultof a failure to maintain the highway. Quantum was agreed at 25000.

Derby City Council relied on s58 of the Highways Act 1980 and argued that they had an inspection regime in place and therefore had taken such care as was reasonable to ensure the pavement was not dangerous for pedestrians.

Their Inspector conducted a walked inspection of the street every six months and on the last inspection before the accident he had not noted a defect in the small vicinity of Ms Harrison's fall.

He gave evidence at trial that thedefects presentwhen Ms Harrison fell could have arisen fairly quickly since the likely cause was the collapse of a cellar. He confirmed the usual consequence of such collapses were of the sort present in this case - which was a rut along the side of the grated entrance to the cellar about 28inches along, three inches wide and 30mm to 38mm deep; and a depression about 18 inches long, 18 inches wide and about 25mm deep.

The Inspector said he saw this happen fewer than 10 times a year compared to 4000 or so recorded defects every six months. The first instance judge found for Ms Harrison. He was not satisfied that the Council had applied itself to the problem of cellar collapses, explaining that they should have conducted a risk assessment and carried out more frequent inspections.

The Council successfully appealed. The Court of Appeal fount that the rarity and modest consequences of such cellar collapses meant it would not be reasonable or proportionate to introduce a different inspection regime to that used in the ordinary course.

Comment: As the Court of Appeal emphasised, cases of this sort will very much depend on their own facts. Nevertheless, it had upheld the general principle that a defendant can rely on a diligent and recognised inspection regime found a s58 of the Highways Act 1980 defence and that should not be upset by the claimant simply arguing that a novel feature exists. They must have some evidence that the feature necessitates a more onerous inspection regime.