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Our monthly review of developments in the insurance and public sector. This edition considers a claim brought under the Occupiers’ Liability Act where the Claimant slipped and fell whilst visiting a leisure centre and case summaries relating to the recoverability of Counsel’s fees and the Court’s approach to Blamire awards.

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Liability for damage caused by tree roots on a public highway

 

JMP v Cardiff Council [2018]

 

This claim arose out of an alleged tripping accident on 5 May 2016 along Ty Draw Road, Cardiff. The Claimant’s pleaded case was that his accident had occurred as a result of an exposed edge of broken tarmac, which caused him to stumble forward and trip over a tree root/stump that was protruding from the floor.

 

Whilst the Council put the Claimant to strict proof on causation (there were no witnesses to his fall and there were no contemporaneous medical records due to the fact that the Claimant had not sought any medical treatment following his accident), the central issue in the case was whether the area complained of by the Claimant represented a danger and a breach of Section 41 of the Highways Act 1980.

 

The matter proceeded to Trial before His Honour Judge Harrison at the Cardiff County Court on 29 October 2018.

Evidence

 

The Claimant gave evidence that as he was walking his dog along the pavement of Ty Draw Road, he saw a pedestrian walking a dog in the opposite direction. As his dog could become a little aggressive around other dogs, he decided to cross over the road. As he went to do so, he had to pass in the vicinity of a tree. As a result, he stood on a broken and raised section of the pavement around the base of the tree. His right foot went over on itself, he lost his balance and fell to the ground.

The Claimant produced a number of photographs of the defective area. Photographs were also taken by the Council following notification of the Claimant’s claim in October 2016 and shortly before Trial. The photographs showed a mature tree set into the outside of the pavement with a substantial root system under the surrounding pavement. At certain points the roots had disturbed the tarmac so as to break up the tarmac and leave the area at a different level to the general surface of the pavement.

 

The Council’s case was that the pavement in the location in which the Claimant alleged he tripped did not pose a danger to the ordinary traffic of the highway and, therefore, the Claimant could not establish that the Council were in breach of Section 41 of the Highways Act 1980.

 

In support of this, we adduced evidence on behalf of the Council that:

 

  • The tree was obvious on approach from any direction and there was ample footway to safely walk around it;

  • Nobody approaching the tree along the footpath from either direction would ordinarily come into contact with the allegedly defective area;

  • The Council received no other complaint regarding the alleged defect whatsoever;

  • The only people who might come into contact with the allegedly defective area were those who chose to mount or leave the kerb at that precise location alongside the tree;

  • Those few people could reasonably be expected to take additional care given that they were stepping up onto or down off the kerb at a point directly alongside a tree;

  • It was reasonable to expect people to allow for the fact that tree roots may have caused some disruption of the surface of the pavement in the immediate vicinity of the tree;

  • Trees have social utility in and of themselves and should be encouraged in our towns and cities. The consequence is that pedestrians may have to take more care.

 

On the Claimant’s own evidence, he had walked in the vicinity of the alleged defect on "too many dates to recall" and “had not noticed the defect prior to the date of [the] accident."

  

When the area was inspected by the Council in October 2016, 5 months post-accident, differences in level were noted around the base of the tree within the roots of the tree itself, but the Council’s Senior Claims Investigator formed the view that these differences in level did not impede safe access along the footway or present a danger to pedestrians walking along the footway. Accordingly, he did not raise any repair works. At the time of the exchange of Witness Statements in June 2018, that position remained (no repair works had been raised by the Council during any of the subsequent routine safety inspections).

 

Shortly prior to Trial however, the Council’s Senior Claims Investigator advised that a repair order in relation to ‘tree roots’ had been raised in relation to the area during a routine safety inspection carried out by a Highways Inspector in September 2018. The works were raised on a Category 3 priority. The Council’s policy documentation, which was exhibited to the Council’s witness evidence, indicated that Category 3 works were programmed works which were considered to be "minor defects not considered to be a safety hazard." Under the Council’s policy, there was no time limit on the rectification of these defects.

 

The Works Order was disclosed to the Claimant’s Solicitors in advance of Trial and, unsurprisingly, was relied upon by the Claimant at Trial as evidence which undermined the Council’s position that the area did not present a danger. However, the Council’s Senior Claims Investigator gave evidence that had the area been considered to represent a safety hazard in September 2018, a separate order for repair would have been raised for repair works to be carried out on at least a 28 day priority. The fact that the works had been raised as Category 3 programmed works confirmed that any defects present in September 2018 were considered to be “minor” and were still not a “safety hazard”. In any event, the repair works had been raised over 2 years after the Claimant’s accident, during which time the condition of the area was likely to have altered.

 

Judgment

 

The Claimant performed well at Trial and HHJ Harrison accepted that the Claimant had had an accident on the date alleged, although he found that it was more probable that the Claimant had caught his foot on the protruding tree root which was present in the Claimant’s photographs, rather than on the tarmac edge of the broken pavement.

 

In view of that finding, HHJ Harrison considered that it was appropriate for the Court to consider whether the area where the accident had occurred presented a danger.

 

HHJ Harrison referred to the well-known authority of Mills v Barnsley and acknowledged the importance for tort law not to impose unreasonably high standards. He also noted that the law ought to represent a sensible balance or compromise between private and public interests.

 

The area in question was certainly an area where there were different levels caused by the breakup of the tarmac around the base of the tree and HHJ Harrison noted that the area certainly had the potential for someone to catch their foot and, further, that someone in the Claimant’s position might trip, stumble or lose their footing. However, that was not the relevant test. Instead, the Court had to consider whether, in compromising the private and public interests, it was a danger against which it was reasonable for the highway authority to take measures.

 

There were a number of factors which had to be weighed in the balance when considering this issue. On the one hand, on behalf of the Claimant, the Court had been invited to look at the measurement of the defect. HHJ Harrison noted that in the area of the broken tarmac, there was certainly a difference in level in excess of 50mm in some places. It was also submitted that the extent of the protrusion of the tree roots into the footway was relevant and that the extent to which the tree roots encroached onto the footway was more than one might expect.

 

Set against these matters, however, were the matters relied on by the Council, and HHJ Harrison was of the view that when one was primarily concerned with the contemporaneous photographs, the pavement was otherwise in a reasonably safe condition and was rather "unremarkable". The distance between the base of the tree and the boundary wall was noted to be "relatively significant”" and where one would normally expect pedestrians to walk, the area was, again, unremarkable. The images from Google maps in 2014 showed a fairly similar situation to that in the more contemporaneous photographs and yet, despite the area being in similar condition for a protracted period of time, the Council had not received any complaints.

 

HHJ Harrison considered that the Court also had to take into account the benefits of the existence of trees in pavements lining residential streets within a city and there was no doubt that it would be regarded generally by the public as a good thing for there to be tree lined roads

 

When applying all of these factors together, notwithstanding the fact that the Claimant did walk in the area, HHJ Harrison found that it was an area which was probably to be regarded as not ordinarily an area where pedestrians would walk. Therefore, the Court could properly conclude that the risk presented by the tree roots was of a low order.

  

In the circumstances of this case, HHJ Harrison found that the balance of the evidence was sufficient for him to conclude that the balance tipped in favour of the public interest rather than the private individual, and he found that the defect complained of by the Claimant did not represent a danger that it was reasonable to expect the Council to take precautions against. The Claimant was, therefore, unable to establish that the Council were in breach of their duty under Section 41 of the Highways Act 1980 and his claim was dismissed.

 

Comment

 

This case illustrates the difficulty presented by large mature trees in pavements in residential areas, but the Judgment of HHJ Harrison reinforces the balance which has to be struck between the public and the private interest.

 

Whilst this was only a County Court decision, and HHJ Harrison was keen to stress that each case would turn on its own facts (particularly when dealing with cases involving tree roots), the view formed that in cases involving mature trees it is perhaps inevitable that the tree roots will cause some disruption to the footways around the base of a tree, is very helpful to local authorities.

 

We are arranging for this case to be reported on Lawtel and Westlaw so that it is a Judgment which can be relied upon in future cases where such issues arise.