Highway authorities' duty with regards to the system of inspection for stop tap/utility covers on the highway

 

DB v (1) Vale of Glamorgan Council (2) Dwr Cymru/Welsh Water [2018]

 

We recently acted for the Vale of Glamorgan Council in a case which dealt with the appropriateness of the Highway Authority’s visual, as opposed to a physical, inspection of stop tap covers owned by a statutory undertaker.

 

The matter came before His Honour Judge Petts at the Cardiff Civil Justice Centre on 9 April 2018.

Facts and evidence

 

The Claimant’s claim arose out of a tripping accident on 11 January 2014. The Claimant gave evidence that he was out jogging with his wife when he stepped on the left hand side of a stop tap cover which tipped down to the left, pivoted round the centre and rose on the right hand side. The movement of the cover under his foot caused the Claimant to fall and sustain injury. The Claimant agreed that when the cover was flush and flat then it looked normal to the untrained eye.

The Authority’s case was that the footway was subject to 6 monthly inspections on foot, but that each and every item of ironwork was not physically inspected and was only subject to a visual inspection. If during such an inspection there appeared to be a defect within the cover, for example if it was raised or slightly open, the inspector would assess the cover and determine whether it was necessary to report it by the issue of a Section 81 Notice to the appropriate utility company.

 

We obtained a detailed Witness Statement from the Authority’s Highways Inspector which confirmed that the footway was last inspected on 19 November 2013. The inspection records showed that the Highways Inspector recorded 37 potholes of various sizes, or other items needing repair at the location, on this date. The Highways Inspector gave evidence that the Authority’s policy was not for inspectors to carry out a physical check of utility covers because, firstly, there would be many such items in any street at any one time and, secondly, because of the risk to health and safety that there would be in either an inspector placing his or her weight on the cover or stepping on it in some other way in case the cover or item of equipment failed and caused injury to the inspector. The Highways Inspector estimated that inspecting items of equipment physically, rather than merely visually, would double the length of his inspections.

 

Welsh Water called two witnesses. Their Operations Supervisor gave evidence that there were two main methods by which Welsh Water identified defects to its apparatus. Firstly, by reliance on the Local Authority’s systems of inspection and receipt of Section 81 Notices and, secondly, by way of notifications from members of the public directly to them of problems which would be investigated and repaired as appropriate. Welsh Water had not received any complaints regarding the stop tap cover in question prior to the Claimant’s accident. 

 

Welsh Water’s Insurance and Claims Manager gave evidence that it would be disproportionate to require Welsh Water to carry out their own inspections. He informed the Court that between 2010 and 2015, Welsh Water received on average 145.5 claims per year, which included all claims relating to tripping and slipping on or over apparatus owned by Welsh Water, and 58% of claims in that period were concluded without payment of compensation being made. These figures were to be put into context of Welsh Water supplying 3.2 million people in Wales and in parts of England.

 

Evidence was also provided as to a survey carried out by Welsh Water within the Rhondda Cynon Taff Local Authority area between 2013 and 2016, during which time over 437,000 properties were surveyed in the Local Authority area and the number of stop taps/covers that needed to be replaced or rebuilt (for whatever reason) was 1.5%.

 

Issues and judgment

 

Despite a vigorous cross-examination of the Claimant, HHJ Petts accepted the Claimant’s evidence that he fell because of a defective stop tap cover. He did not draw any adverse inferences against the Claimant for failing to call his wife to give evidence, despite her being present at the time of the accident.

 

HHJ Petts also found that a cover that tipped under someone’s weight when standing on the side of it was a danger and a breach of Section 41.

 

The main issue of the case was whether the Authority could rely upon the statutory defence pursuant to Section 58 of the Highways Act 1980.

 

It was noted that there was no good or direct evidence before the Court as to the length of time for which the cover had been defective, however, the first question in relation to the Section 58 Defence was whether the inspection carried out by the Authority’s Highways Inspector on 19 November 2013 was adequate.

 

HHJ Petts accepted that if the stop tap cover had been in a visually defective state at the time of his inspection, the Highways Inspector would have recorded and reported it under Section 81. He had carried out a detailed inspection, recording a number of other defects, and had inspected in accordance with the terms of the Authority’s policy. Therefore, the question was whether the Authority’s compliance with its policy was enough for the Highway Authority to prove that it had taken reasonable care to see that the part of the highway to which the Claimant’s claim related was not dangerous.

  

It was submitted on behalf of the Authority that the degree of risk against which they were guarding and the chances of there being any defect on any piece of apparatus that might cause injury when that defect is not visible to the naked eye was very low and the steps that would need to be taken to detect and avoid that risk were not proportionate to the level of risk.

 

When considering the parties’ respective submissions on the reasonableness of the Authority’s inspection policy, HHJ Petts gave specific consideration to the case of Wilkinson v City of York Council [2011] EWCA Civ 207; a case where the Local Authority inspected at a frequency that was not in accordance with the national Code of Practice for highway inspections, the explanation for which was due to financial and manpower resources. In that case, the Court of Appeal held that Section 58 requires an objective judgement based on risk and was designed to afford a defence to a Highway Authority which was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users; not an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe.

 

Counsel for the Authority asserted that, in this case, the logical question before the question of allocation of resources was whether any resources at all needed to be expended on guarding against the risk, taking matters reasonably.

 

Having considered all of the evidence, HHJ Petts was of the view that the Authority did take such care, as in all the circumstances was reasonably required, to secure that the highway was safe. He held that it was a matter of common sense and trite law that not every risk requires precautions to be taken to guard against it. He found that the risk of an injury occurring on defective equipment which could not be seen to be defective, save with a physical examination, is a risk of a very low order. In those circumstances, it would be completely disproportionate to require the Authority to physically check all items of equipment. Any injury to pedestrians is also likely to be at the lower end of the scale rather than a risk of very serious injury or death and these were factors to take into consideration when considering proportionality and reasonableness.

 

HHJ Petts found that the case of Wilkinson was concerned with a different point; a lack of resources to carry out an inspection regime that was required under the Code of Practice. There was nothing in the Code of Practice to say that a physical examination of utility equipment was required and there was no evidence that the Authority were somehow ‘out of line’ with other Authorities in not having a policy for that.

 

Accordingly, the Section 58 Defence was made out.

 

The Claimant’s claim against Welsh Water was also dismissed. HHJ Petts held that it would be a disproportionate duplication of effort to require Welsh Water to carry out its own inspections, given the size of the systems and the number of inspections carried out by Highway Authorities across Welsh Water’s region in any event. A reactive system of dealing with complaints or under the Section 81 process was an entirely proportionate and reasonable one given the number of claims, the level and nature of the risks and the number of likely problems that there would be in any event.

 

Comment

 

This decision reinforces the decision of District Judge Carson in the case of Samuel v (1) Rhondda Cynon Taff County Borough Council (2) Welsh Water (2013) CC (Cardiff), which we also previously dealt with on behalf of Rhondda Cynon Taff County Borough Council (and previously reported within the Dolmans’ Insurance Bulletin and on Lawtel and Westlaw legal research databases). We relied upon the Samuel case within our Defence to this claim, however, as a County Court decision, it was not binding upon the Court and as it was not a decision which considered the impact of Wilkinson, HHJ Petts decided to consider the issues raised afresh.

 

Whilst this is also a County Court decision, it is probably the most authoritative Judgment on the visual/physical inspection of utility covers and the only one which we are aware of which deals with the case of Wilkinson. The case is, therefore, of great assistance to Local Authorities and Welsh Water when facing claims which involve similar issues. We are, therefore, arranging, jointly with Welsh Water’s representatives, for this case to also be reported on Lawtel and Westlaw so that the full approved transcript of the Judgment is readily available to both potential Claimants and Defendant Local Authorities alike.

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