Nash v Hertfordshire County Council

HHJ Lickley handed down his judgement on the case of Dominic Nash v Hertfordshire County Council [https://www.bailii.org/ew/cases/EWHC/QB/2020/3247.html] on 30 November 2020. The claimant brought a claim for personal injury against the local authority on the basis that they had breached their duty of care to him imposed by the Highways Act 1980.

Background

On 13 March 2016, the claimant, who was then aged 50, was riding along a road on his bicycle and as he rounded to his left on a 90-degree bend he veered onto the wrong side of the road and collided with a van which was being driven in the opposite direction.

The claimant alleged that he had been forced onto the wrong side of the road as he had to avoid a large pothole in the carriageway. He never alleged that the van driver had been negligent. He brought his claim against the local authority on the basis that they had failed to properly inspect and repair the highway.

The scene

The road where the collision occurred is a single-track road with no markings. There are entrances to farms and properties along the road but otherwise it is mostly neighboured by fields. The road was classified by the council as a rural access road, meaning it is subject to an annual inspection by a highway’s inspector. The last prior inspection had been carried out in August 2015, around 8 months before the accident.

The claim

The claimant’s case was that the collision was caused by the poor condition of the road surface which forced him to swerve to avoid the potholes which were on the inside of the bend in the road. He claimed that the local authority had failed to ensure that the highway was in a reasonable state of repair and that the potholes represented a real source of danger.

The local authority denied liability for the claimant’s injuries. They alleged that the claimant was riding his bicycle too fast and too wide around the bend and this caused him to lose control and to collide with the van.  The local authority alleged this is what the claimant had told the police officer who had interviewed him following the accident. The claimant refuted this allegation on the basis that he was in no fit state to know who was asking him questions or what was asked. He suffered a stroke shortly after arriving in hospital and was unconscious for several days afterwards.

The local authority also denied liability on the basis that they had not breached their duty of care under the Highways Act. They denied that the potholes would be considered as dangerous or that they required repair.

Witnesses reported that the claimant did seem to make an effort to avoid the potholes as he rounded the bend but, at the same time, he seemed to be going too fast for the road conditions.

The law

The court applied the test in Mills v Barnsley MBC:

“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:

• 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;

• the dangerous condition was created by the failure to maintain or repair the highway; and

• the injury or damage resulted from such a failure.”

It was therefore for the claimant to prove that, on the balance of probabilities, that the Local authority had breached their duty and the dangerous state of the road surface was the cause of the accident. The claimant had to establish that the specific point in the road that caused his accident was dangerous, not that the whole road was generally in a poor condition.

Decision

HHJ Lickley first considered whether the local authority had breached its duty of care under the Highways Act 1980. He found that the highways inspector who had carried out the last pre-accident inspection of the relevant area was a credible witness. HHJ Lickey accepted the inspector’s account that there were no actionable defects present in the carriageway at the time of the last pre-accident inspection. HHJ Lickey found that the defects must have arisen in the intervening 8 months period from the date of the last inspection to the date of the accident.

HHJ Lickey also found that the defects present on the date of the accident were not dangerous and he considered the risk was low. He reached the conclusion that the local authority had not breached its duty of care under section 41 of the Highways Act 1980 and the claimant’s case failed.

HHJ Lickey still went on to consider whether the highway defects were the cause of the accident and once again found against the claimant basically because he had failed to mention the presence of the potholes during his post-accident interviews with the police. HHJ Lickey felt that the statement the claimant provided to the police following the accident was likely to be an accurate account and he found that the claimant was likely to be riding too fast for the road conditions and this caused the accident.