It is common in highway trip and slip claims for claimants to provide photographs of the defect they say caused them injury. Those photographs usually show, amongst other things, an attempt to measure the defect in support of their claim. However, in Walsh v The Council of the Borough of Kirklees, Mr Justice Dingemans confirmed that a claimant must prove the size of the defect complained of when bringing their claim. If a claimant does not have evidence to prove the length, depth or width of the defect, their claim will likely fail.
In November 2013, the Claimant was cycling with her partner, Mr Quashie, on the Bay Horse Roundabout, Huddersfield. Whilst doing so, her front wheel hit a pothole, causing her to lose control and fall off her bicycle. She sustained a comminuted fracture of her right leg.
The Claimant brought proceedings against the Defendant, the relevant highway authority, for a breach of statutory duty pursuant to section 41 of the Highways Act 1980 ("HA 1980"). It was alleged in response by the Defendant that the defect was not dangerous and that the Claimant had slipped off her bicycle. Both parties accepted that the Defendant was unable to rely on the defence available to it under section 58 of the HA 1980.
The matter originally came to trial before His Honour Judge Davey QC in August 2018.
The Claimant relied upon photographs of the defect taken by Mr Quashie. Mr Quashie's photographs were taken several weeks after the accident, in late November or early December 2013. He was unable to produce measurements of the pothole as the roundabout was so busy. Photographs of the defect were also taken by Mr Donoghue, an engineer working for the Defendant, in July 2014. Those photographs ("the 2014 photographs") included an image of a tape measure being placed on the road over the width of the pothole, in an attempt to ascertain the size of the defect. Further, the 2014 photographs appeared to show a piece of road material in the part of the pothole nearest the roundabout, which raised questions in respect of the width of the pothole.
The Defendant produced evidence of its inspections of the defect, which was not reported as being dangerous, nor as being in need of repair. A repair was, however, carried out and pre-repair measurements of 100mm long by 15mm and 40mm deep were detailed in Mr Donoghue's witness statement, although no formal record of these measurements could be provided.
Although the Judge found that the Claimant had hit a pothole, and had subsequently fallen from her bicycle and suffered injury, he dismissed the claim on the basis that there was not enough reliable evidence of the dimensions or condition of the pothole for him to say that it was more likely than not to present a real source of danger. He considered that the photographs taken by Mr Quashie were "virtually meaningless when assessing the level danger involved". The Judge stated in his judgment that it was also impossible to say from the 2014 photographs provided by the Defendant what the width of the pothole was.
The Claimant subsequently appealed.
The appeal to the High Court
The appeal came before Mr Justice Dingemans. The Claimant argued that the Judge was wrong to find that he could not determine the length and width of the pothole in circumstances where there was a photograph with a tape measure over the pothole so that its dimensions could be determined. The Claimant also argued that the photograph showed that the dimensions could be measured at a width of 150mm (6 inches), a length of 200mm (8 inches) with an admitted depth of 40mm.
Mr Justice Dingemans dismissed the appeal. He considered that the Judge was right to find that there was not enough reliable evidence of the dimensions or condition of the pothole to say it was more likely than not that it presented a real source of danger. This was because it was not possible to determine what effect the road material underneath the tape measure, together with the road material in that part of the relevant area nearest the roundabout, had on the measurements of the pothole.
This case emphasises the importance of a claimant providing measurements of width, depth and length of highway defects. Failing to do so means that the basic elements of such a claim are unlikely to be satisfied.