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Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Speakers included Simon Evans, Peter Bennett, Amanda Evans and guest speaker, Steven Ford QC.

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Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Simon Evans considered the impact of the Civil Liability Act 2018, Peter Bennett provided a regulatory update and Amanda Evans and guest speaker, Steven Ford QC, discussed recent developments following CN v Poole BC [2019] UKSC 25.

Our monthly review of developments in the insurance and public sector. This edition considers a highway tripping claim where a focused defence overcame the Claimant’s attempts to overcomplicate the matter and case summaries relating to the fixed costs regime and the admissibility of covert recordings as evidence.

This edition considers recent case-law regarding fundamental dishonesty, the necessity for bespoke life expectancy evidence, the meaning of ‘use of vehicle’ where a vehicle had been parked in a private garage which caught fire and apportioning liability for speeding.

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Expert engineering evidence in fast track highways matters

LRA v Rhondda Cynon Taf County Borough Council [2019]


The Courts are usually quick to dismiss any attempt to adduce expert engineering evidence in highways matters, particularly those that have been allocated to the Fast Track.


The Court did, however, allow such expert evidence in the recent case of LRA v Rhondda Cynon Taf County Borough Council, where Dolmans represented the Defendant Authority.

Background

The Claimant alleged that she was walking up an incline along an un-gritted tarmac footway when she slipped and fell on black ice, and was likely to prove that her accident had occurred in the circumstances alleged based upon contemporaneous records and documents.

The Claimant alleged that the surface of the footway had previously consisted of paving slabs, but had been replaced using tarmac approximately one month prior to her accident. It was alleged that the Defendant Authority had breached its statutory duty pursuant to Section 41 and Section 41A of the Highways Act 1980 and/or was negligent.

In essence, the Claimant alleged that the surface of the footway was not appropriate as the tarmac surface rendered the highway more slippery than it was previously.


The Claimant also alleged that the presence of ice on the surface of the footway rendered the Defendant Authority in breach of its duty to ensure, so far as is reasonably practicable, that safe passage along the highway was not endangered by snow or ice.

Permission to adduce expert engineering evidence
 
The Judge considered that expert engineering evidence was needed in this particular matter so that the Court could understand how the tarmac performed differently to the previous slabs in winter conditions, and granted permission for a joint expert engineers report to be obtained on that basis.


The Judge was persuaded by the fact that the alleged accident had taken place soon after the surface was changed, despite there being no other accidents at the relevant location.


The parties were also given permission to forward questions to the said expert, if necessary.


Expert engineer’s report
 
The joint report subsequently provided was favourable to the Defendant Authority.


In summary, the report considered the following salient points:

 

  1. The Polished Stone Value (PSV) of the previous slabbed area was 40 to 45, whereas the PSV for the replacement area (dense asphalt concrete surface course material) was 60 or more. Hence, the new material was more effective than the older slabs.

  2. An anti-slip coating is not required and would only have increased the PSV to 70 in any event. 

  3. The site does not appear to be on any significant pedestrian desire lines.

  4. The choice of surface construction (as above) was not dangerous.

  5. Although there is justification for a risk assessment relating to the gradient of the footway (at this particular location), there was no need for any other risk assessment, and any risk assessment of the footway would not have recommended any additional measures in any event.

  6. The type of footway surface is relevant to the formation of black ice, but the Defendant Authority’s winter maintenance policies were reasonably practicable to discharge its duty in this regard under the Highways Act 1980.

Questions
 
Being faced with the above report, the Claimant’s solicitors chose to put questions to the expert. However, the expert’s responses did little to assist the Claimant’s case.


The expert’s responses to these questions confirmed the following:

 

  1. It appeared that although the increase in volume of voids in the surface dressing increased the likelihood of ice formation, this also, however, assisted with skid resistance/PSV values. 

  2. Although slurry surfacing would reduce the risk of slipping on ice and improve slip resistance, the expert was unaware of its use on any footway in the UK and a more economical/practical approach was the use of the 6mm dense asphalt concrete surface course.

  3. There was justification for a risk assessment of the slope (but nothing else), although even if risk assessed, no additional measures would have been recommended.

Claim discontinued
 
Despite her attempts to undermine the expert engineer’s evidence, the Claimant had no real option but to discontinue her claim against the Defendant Authority, which she did prior to Trial.

Conclusion
 
Fortunately, the expert engineering evidence in this matter favoured the Defendant Authority and as this had been obtained on a joint basis with subsequent questions, the Claimant’s claim was effectively defeated by the strength of this evidence.

 

It should be remembered, however, that it is unusual for expert engineering evidence to be allowed in a Fast Track highways matter and that the Court will consider the specific facts when considering any Application to adduce such evidence.


The Court, in this particular matter, considered that it would be assisted by expert engineering evidence when determining liability, given the change in highway surfaces prior to the Claimant’s alleged accident. Ultimately, this particular evidence proved to be an effective weapon in the Defendant’s armoury.