Pedestrians on the carriageway – a success for the highway authority

Sammut v Kent Council [2026] EWHC 992 (KB)

Weightmans represented Kent County Council in the successful defence of a novel highway tripping claim.  The multi-track claim was defended to trial where it was dismissed.  The claimant appealed and that appeal was in turn dismissed, by Mr Justice Coppel in the High Court.

Background

The claimant alleged that on 12 November 2018 she had been walking her dog, in the company of her sister, when she tripped over a pothole in the carriageway and sustained a left shoulder fracture, causing ongoing chronic pain.  The claimant was walking in the carriageway because there was no pavement in that section of the road. The road had been a country lane and over the years houses and housing developments had been built along it.  Pavements had been put down in some sections of the road but were not continuous.

The claimant alleged that as pedestrians had to use the carriageway the appropriate standard of maintenance, further to section 41 of the Highways Act 1980, was by reference to Kent County Council’s standard pavement intervention level (as it was then termed) of 20mm difference in height.  On behalf of the Council it was contended that the carriageway intervention level of 50mm difference in height should be applied. Alternatively, it was contended that the Council could make out the statutory defence available to a highway authority, further to section 58 of the Highways Act 1980, that they had done what was reasonably required to make the carriageway safe; by reference to the last pre-accident inspection of the road.

Trial judgement

After a two day liability only trial the Judge found for the Council and dismissed the claim. The judge accepted that the claimant had fallen as alleged and found that the pothole in question was 30-40mm deep and located about a third of the way into the carriageway. Applying the test in the well known case of Mills v Barnsley [1992] PIQR 91 in relation to whether the condition of road was dangerous, such as not to be satisfactorily maintained, the Judge considered that was not the case because it was not reasonably foreseeable that pedestrians would walk over the pothole. As advised in the Highway Code, they would be expected to walk along the edge of the carriageway.

Alternatively, the judge accepted that the Council could make out a section 58 defence.  In the main that was because the judge accepted that it had been reasonable for the Council to apply the carriageway intervention level of 50mm difference in height when carrying out inspections as there was no evidence of any previous problems for pedestrians. Without the issue having been raised by the Council, the judge also referred to the resources that would have to be deployed to carry out pavement standard inspections in all such areas.

Appeal judgment

The claimant appealed the trial judge’s findings in relation to section 41 and section 58 on various grounds. The appeal judge dismissed all but one of those and essentially was of the view that there could be no criticism of the fairness of the judgement, the findings on the basis of the evidence or that the reasons for those findings were inadequate. The appeal judge endorsed the view that pedestrians would be expected the walk down the side of the road. 

As anticipated, the appeal judge found that the trial judge was wrong in considering the issue of resources in relation to section 58 and that the case of Wilkinson v City of York Council [2011] EWCA Civ 207 is clear authority on that point.  However, that had no effect on the reasonableness of the overall judgement.

Learning

It is well recognised that sections of the carriageway that are natural crossing points for pedestrians should be treated much the same as pavements in terms of maintenance and inspections.  This case illustrates that the concept of the natural use of a carriageway by pedestrians goes further, in this instance to the benefit of the highway authority but that might not always be the case.

Therefore, in any case involving a pedestrian tripping on the carriageway it is important to think carefully about the scene, the general use of the road by pedestrians and the route being taken by the claimant.  Further, in terms of section 58 the absence or otherwise of any prior problems will be relevant when considering if a carriageway approach was reasonable before the accident.