Partially worn utility cover not a highway danger

A utility cover on which the surface pattern had partially worn away did not amount to a danger on the highway.

Eileen Lewis v Wirral MBC

Birkenhead County Court, 29 September 2017 – Deputy District Judge Campbell

Summary

A utility cover on which the surface pattern had partially worn away did not amount to a danger on the highway.

Facts

Picture of the worn utility cover on which this case centred

The claimant’s case was that she slipped on the surface of a utility cover because the surface pattern had worn away creating a slip hazard that amounted to a breach of section 41 of the Highways Act 1980 (the Act). A photograph of the alleged defect is shown below. The council denied liability on the simple basis that the alleged defect was not dangerous.

Judgment

The claim was dismissed. The worn area of the utility cover did not exceed 10% of its surface area and there had been no prior complaints or other reported accidents. The judge held that to view a defect of this nature as a breach of section 41 would be to set the standard of repair for the public highway too high and place an unreasonable burden on highway authorities.

Comment

What does and does not constitute a breach of section 41 of the Act is always a key battleground in claims arising out of accidents on the public highway. Ordinarily it will involve scrutinizing a disturbance of the fabric of the highway with a further focus on its specific location and the likely highway users. This was a slightly more nuanced situation and defect. However, whilst an excessively smooth and slippery road surface may trigger the section 41 duty in appropriate circumstances, the key issue remains the Mills v Barnsley MBC threshold of a defect being something that a reasonable person would regard as a real source of danger.

Weightmans LLP’s Local Government Team acted for Wirral MBC and their insurers Zurich Insurance in this case.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake, Partner on 0151 242 6866 (peter.wake@weightmans.com) or Rachael Fawcett, Solicitor on 0151 243 3317 (rachael.fawcett@weightmans.com).

Share on Twitter