04/TLQ/0084
Neutral Citation Number: [2004] EWHC 1557 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand
	London WC2A 2LL

Wednesday, 9th June 2004

BEFORE:

HIS HONOUR JUDGE ALTMAN

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OWEN
CLAIMANT

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CITY OF WESTMINSTER
DEFENDANT

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Tape Transcript of Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR J BASSETT (instructed by Kenneth Elliott) appeared on behalf of the CLAIMANT
 
MR P FREEMAN (instructed by Kennedys) appeared on behalf of the DEFENDANT

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J U D G M E N T
JUDGE ALTMAN: 

1.	This is a claim in negligence and breach of statutory duty, namely s.1 of the Highways Act 1980, which imposes on the Defendants a duty to maintain the highway.  On 29th March 2000 the Claimant was walking along the north side pavement of Oxford Street in London from west to east, when, at a point outside Selfridges store, she caught her foot on the paving stones and fell, ultimately on her back, sustaining injury to her coccyx, and the back of her head, but notably to her left leg.

2.	There is no doubt on the findings I will make that the Claimant tripped and that her foot tripped on a join in paving stones, which were to an extent uneven.  It may be thought that the occurrence of this very unpleasant accident should thereby render the Defendants liable.  This accident, amongst other things, ruined the trip to this country for a month’s holiday, of a lady in her 70s, through no fault of her own whatsoever, and caused her, no doubt, great anxiety as well as pain and disability for an extended period, together with the need to undergo operative treatments.  

3.	On that basis it may be thought that the law should provide that the Defendants should compensate the Claimant.  But the issues that this court has to decide, in addition to what in fact happened, relate to whether what happened represented negligence as pleaded, or a failure to maintain the pavement on the part of the Defendants, and even if it did, whether this is a case in which the Defendants have failed to establish the statutory defence in s.58, which entitles Defendants to escape the liability they would otherwise bear, if able “to prove” that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.

4.	The Claimant was with her daughter, Robin Owen.  They were joined by the Claimant’s son-in-law, Mr Delaney, who flew over very soon after.  The first exercise I engage upon is to try to determine, many years later, what, occurred.  I had the opportunity of hearing live evidence transmitted from New Zealand, and reading the witness statements on behalf of the Claimant, and I have no doubt that all witnesses were endeavouring to give a true account of what occurred.  I must, however, in looking at this evidence, bear in mind, it seems to me, that this was an unexpected incident, over in a flash, no doubt, in a highly charged moment of upset and panic, and that thereafter it is inevitable that those involved in this sort of incident would try to some extent to reconstruct in their minds what they believe must have happened to give rise to the accident.

5.	In her statement, the Claimant said that her foot became caught between two paving stones.  The Claimant was wearing sandals at the time which were moderately flat heeled and open toed, so that the opening for part of the toes, mainly the big toe, resulted in a slight projection forward of the sole of the sandal at that point.  She said that she put her left foot down on a paving stone.  When she went to raise her left foot she could not raise it because it had become caught between the stone that she had stood upon, which was depressed, and the stone in front which was raised, due she believed, to someone else standing on it.  She said she could not get her foot out of the gap, she believed when someone else stood on the stone in front, so she caught her foot between the paving stones and, as a result, she said, she twisted and fell.  She could not say positively that someone was standing on the slab in front preventing her from removing her foot, but her foot definitely became caught, she said, between the two stones, and so that is what she presumed had happened.

6.	Three aspects of the scene require examination, therefore; first, the condition of the paving stone on which the Claimant’s left foot rested, secondly, the gap between that and the adjoining paving stone, and thirdly, any movement and relevance as a result in relation to the forward paving stone.

7.	When she was cross-examined it was suggested to the Claimant that it was possible that her toe was simply caught; she said that the paving stone was jammed down on her toe so she could not lift it.  She could not say, in answer to a question, whether the toe of her sandal snagged on the gap, all she could say was that her foot was completely jammed.

8.	Her son-in-law, Mr Delaney, when he gave evidence, agreed that the stones in fact were too thick for the situation to arise, whereby the foot of the Claimant could have been underneath the leading paving stone.

9.	As to there being people in front, the Claimant said in cross-examination, that there were several people in front of her, that they were close in front of her, but she could not say, she was only surmising that there was someone in front of her actually pressing the stone down.  They were close.  This is Oxford Street, and it was no doubt, on a busy day when there are a lot of people milling up and down the pavement.  I can well understand that there were a number of pedestrians walking in the same direction as the Claimant.  When she caught her toe, it appears that there was some stumbling movement before the Claimant, in fact, fell backwards, because, as she said, she lost her balance.  She could not remember where her right foot was.  

10.	The Claimant’s daughter gave evidence that her mother initially fell forwards, but then as her foot came free she fell over backwards as she over-corrected her balance.

11.	When her daughter was cross-examined, she agreed that she was more concerned with her mother at that moment than exactly what had happened.  But she saw her mother lunge forward and do what looked like a somersault backwards, falling on her back, and she was quite taken aback with that.  She did not see the sandal go into the gap, but it was a conclusion that she came to when the foot was caught and suddenly became released; “like when you trip you do not usually go backwards.”

12.	The part played by the leading stone in this is, to some extent, a matter of inference.  What is postulated is that the eastern edge of the stone, on which the Claimant put her left foot, rocked so as to drop a little, at virtually the very moment that pressure on the eastern edge of the stone in front was depressed, so as to make a combined trip, which on the Claimant’s behalf it is said, was about 30mm in height.  Before coming to my findings in relation to that, it is appropriate to set out the efforts made thereafter to identify the place, and any defects, and to photograph them.

13.	On the Monday after the Wednesday, of the accident, the Claimant’s daughter and son-in-law went to take photographs.  It was Mr Delaney’s idea.  He took a photograph of the rocking effect of the (what I will call) accident stone, with the Claimant’s daughter pressing it down so as to show a lip of about 15mm, without any movement of the stone in front.  They say that that did not show the true position, for the stone in front rocked, and it was Mr Delaney who suggested that the worst available situation was a rising up of the forward stone and a lowering of the rear stone, so as to create a trip of about 30mm.  This was not measured, but was apparently estimated.

14.	A photograph was taken at the time.  Mr Delaney was questioned on the basis, that surely, if he was trying to show how bad it was, he and his wife would have contrived to depress both stones at the same time for the photograph.  But he explained that he was simply trying to demonstrate where the accident occurred, and the fact that there was a trip, without anticipating at that time the collection of evidence.  And I imagine that he did not know, or have at the front of his mind, the 20mm “standard of intervention” adopted by these Defendants in their maintenance practice, and common generally in this country.  And whilst with hindsight, and the knowledge of the implications of litigation, one may express surprise that the full measurement was not done, I do not share that surprise.  In the context of what occurred I accept the evidence of Miss Owen and Mr Delaney that there was movement in the forward stone, even though they did not demonstrate it on the photographs.

15.	I have seen a picture at page 54 of the bundle, which shows the general location, on a rather wet day, of the stone.  There appears to be an entrance to Selfridges opposite a bus shelter.  To the west of that there is a window display, then a pillar, and then a small door opening with a display window that had a blue masking in it at the time of the accident.  In front of that display window are two trees, and the accident appears to have occurred on the line of paving stones at right angles to the store, which were about two stones from the tree.  There were a pair of stones which were of full size starting from the apron of concrete that surrounds the store, and alternating along the pavement with a line of stones that began as a half stone, so as to create the intermittent patterning of the paving.  

16.	The photograph shows that at the join with the leading stone, the accident stone when viewed from the direction in which the Claimant was walking, projected further to the left, overlapping an adjoining stone and the vertical, that then went alongside what would be the northern edge of the leading stone, had a cigarette butt caught in it.  It also appears that the pointing mortar is missing.  Mr O’Leary, the inspector for the Defendants, confirmed that the mortar around the accident stone was missing down to a certain level.  

17.	The history of that stone was taken further by Rajbinder Dhanoia, the solicitor for the Claimant who identified, on a visit in 2002, the same stone from photographs.  And from the photographs they took at the time, without going into the detail, it appears that the location of the stone where the accident occurred and the location which was inspected by Rajbinder Dhanoia are one and the same.  She said in her statement:
“After careful consideration of the photographs, I noted that the paving stone in question had been filled in.” 

	She further noted that the surrounding paving stones had also been filled in, and by filled in, she explained in cross-examination, she meant that cement had been used to fill in the gaps.  She was with a trainee solicitor from the same firm, Mr Whitwell, who said that he noted the paving stones had been filled in addition to the surrounding paving stones, but he could not ascertain when the repair work had been done.  Looking at the two sets of photographs, it appears clear that it was done at some time after the accident.  I make no criticism of the inability of the Defendants to be more specific about that, for it was, as I understand it, about two years before they were notified of this particular accident, and they had difficulty then in identifying the precise location of the accident.

18.	Rajbinder Dhanoia was cross-examined about her ability to identify the particular spot.  She took the light cement as evidence of recent repair.  It looked filled in, and clearly it had been.  And she looked at the bus-stop, the bench, the two trees, and Mr Delaney’s standing between the two trees in the photographs, to identify the location.  I have no doubt that she examined the same stones, and that there had been some filling since the accident.

19.	There has also been some evidence about the general history and                       condition of paving in this area maintained by the Defendants.  Mr Roley, a now retired bank manager who formerly worked off Oxford Street, had been very concerned with the condition of the paving in an adjoining street, particularly when it had been dug up and poorly replaced by the electricity undertakers.  He had found some 35 defective cracks in the slabs and covers, between Bond Street tube station and North Audley Street, but he had not viewed the northern pavement of Oxford Street at any time.  He had been in correspondence with the Defendants, who had replied in what appears to be a concerned way, and their contractors who were responsible for the actual work, who wrote, perhaps in a rather more dismissive way, saying that matters had been dealt with.  He said that he still visited occasionally, regularly but infrequently.  He made an unfavourable comparison with the pavements in the City of London.  The ratio of business rate payers to mileage of pavement in the City of London, it is accepted, may have provided more resources for them to keep on top of their pavements and maintain them to a higher standard.  He also found on one occasion Mr O’Leary, the reactive inspector as he is described, told him there had been a repair, but Mr Roley checked and found that there had not.  He confirmed in evidence, however, that he could not speak to the particular area of pavement involved in this accident.

20.	Mr Viara, a security man who spent a considerable amount of time outside the place of his employment, Selfridges, gave evidence.  He stated in his original statement that paving stones had been loose, wobbly and uneven since he started work in December 1998.  He had got used to the defect and knew to avoid it.  He remembered the area being repaired, but there was still unevenness even after the repair.  In cross-examination it became clear that he was not asked about his knowledge until some two years after the accident when the solicitor, Rajbinder Dhanoia went with Mr Whitwell to inspect, and that he was not able to give direct evidence as to the condition of the paving stones where this accident occurred.

21.	Mr O’Leary himself, whose job it was to react to specific complaints, and sometimes to cover and do works on the routine inspections to which I shall refer, conceded that rocking paving stones were a problem throughout Westminster.  

22.	It is important, it seems to me, to establish the part played by the rocking nature of the paving stone in this case.  There is no evidence that the actual process of rocking created any instability for the Claimant.  Its relevance is that its downward movement created a trap, to which I have referred.

23.	I accept the evidence of Mr O’Leary and the Defendants, that they had no specific knowledge or record of the particular defect that existed in this case.

24.	I find it easier to establish some of the facts of this accident than others.  I have concluded, and so find, that the placing by the Claimant of her left foot on the paving stone where she fell, depressed that paving stone to a level at least 15mm below the top of the one ahead, when the one ahead had no pressure on it.  I find that, as the momentum of her walk led her toe into contact with the lip of the forward stone, with her heel ready to lift or even lifting, the sole of her sandal must have become caught in the gap between the stones so as to feel as if the foot were jammed, causing her not just to trip forwards, but for the foot to be caught for a sufficient moment for her to lose her balance and fall backward.

25.	What is not so easy to conclude, though, is the part played in that, if at all, by the leading stone.  I accept the evidence given by Miss Owen and Mr Delaney, that when they returned they found this stone to be rocky, not only because they say so, but also, interestingly, because Mr O’Leary, in describing uneven and rocking stones, described how frequently it would not just be a question of remedying one stone, but also adjacent stones that may also be loose and rocky.  That means that if that leading stone moved at the time it would have increased the trip, and made more likely the accident that occurred in the way I have described. 

26.	Whilst it is conjecture on the part of the Claimant that someone, at that very moment that she depressed her stone was depressing the stone in front, I reject that proposition.  It would mean that they would be a matter of inches or a foot or so apart, perhaps a little more, and that the Claimant would be positioning herself, as she walked down Oxford Street, extremely close to the person in front.  Whilst in a crush, that might be the sort of way people walk down Oxford Street, and though there were crowds that day, it was not as bad, on the evidence I have heard, as that.

27.	I wondered at one time, if indeed the Claimant herself may have brought her right foot down before she tripped or as she tripped, and made the position worse.  But whilst that might be an attractive scenario, I am bound to conclude it finds no support in the evidence that has actually been given.  It may be, I do not know, that the forward stone could remain in the slightly tipped position with no weight upon it.  It is notable that it did tend to tip, and did thereby increase the trip.  I am satisfied, on the evidence I have heard, that at the time of the accident there probably was some increase to the depth of the trip caused by the looseness of the stone in front.

28.	I conclude first, that the mathematical accuracy which may be a useful yardstick for determining when the Defendants should or should not carry out repairs, is an artificial goal for a court seeking to determine the size of a trip at the time of a particular accident.  What is undoubted is that a photograph shows a pound coin rested to bridge the gap at a slant between the two stones.  It took about two thirds of the width of that pound coin and revealed a gap and a change in height, which, on my findings, was something over 15mm, and in view of the marginal nature of it, was probably at or approaching the 20mm sort of height.

29.	Evidence has been given, for the purpose of the defence, of the way in which the Defendants undertook the maintenance of this pavement.  It was done in two ways.  There was a process of routine inspection carried out on a monthly basis, and in addition where there were what are called Citizen Charter contacts, that is members of the public or others who drew the attention of the Defendants to specific matters, they would respond, it would appear, very promptly, at least so far as the time taken was concerned.

30.	Mr O’Leary, if he was carrying out an inspection, would have a recording machine which he called a husky, into which he would type any defect he found, which was then translated into a document called a roadster on return to the office.  The records that have been produced show that there were a number of reactive calls to this pavement near and around Selfridges over the months and the years.  Mr O’Leary, when carrying out inspections would inspect that particular complaint.  If it reached what he described as the intervention level, it would receive a “priority 1” marking, which would necessitate repairs within, as I recall, two hours or so, and if there was any immediate obstruction or danger or delay anticipated cones would be placed in accordance with statutory requirements.  If something less than intervention level was seen, which it was anticipated was nonetheless hazardous, or might give rise in the near future to a hazard, it was given a “priority 4” marking, which required repair within seven days, or a “priority 7” marking, which required attention soon, which on the records that we have seen, was also invoiced generally within about seven days.  That was the frequency of inspection.  

31.	The method of inspection was dealt with.  Mr O’Leary said that it was not possible to stand on every paving stone to see if it was rocky.  It would be visual.  You could hear people treading, and no doubt he would listen, as he said, when it was busy, presumably for a hollowness of sound.  He was asked how he checked for a rocking paving stone.  He said that if it was bad the pointing will have come away, the stone would not sit square, and he would tread on a corner of the slab.  If it was rocking he would look at the adjacent ones, and if there was a rocking adjacent slab with a lip that made them both up to 30mm he would record it.  If there was a rocking movement he would not issue a repair instruction unless the lip thereby created came to 20mm, or a little under sometimes, he said, when he would issue a “priority 4.” 
32.	As to the one pound coin exhibited on the photograph at page 76, he said that that was nowhere near the intervention level, and he considered it nowhere near dangerous.  He asserted that one can tell a rocking slab by looking in the way he described.  Whilst, of course, the burden is not on the Claimant, there is no specific method of maintenance or inspection put forward on the Claimant’s behalf, as a counsel of reasonable procedure other than that, to identify a rocking paving stone.

33.	As an example of Mr O’Leary’s routine inspections, and indeed, relevant to some extent, to this case, is the inspection carried out on 5th March 2000, just over three weeks before the accident.  This has been the subject of some debate.  The documents demonstrate a reference to a stretch of road called Oxford Street/40, which I am told is the length of Oxford Street between Marble Arch to the west and Oxford Circus to the east.  Counsel for the Claimant has pointed out that between 6:08 in the morning, on the face of it, and 6:23, this inspection seems to have taken place.  In his statement, Mr O’Leary described it as the routine inspection carried out on 5th March.  He carried out the routine inspection of this stretch of Oxford Street on 5th March 2000.  I have no other evidence before me.  But the few minutes set aside for a very long stretch of pavement is drawn to the court’s attention by counsel for the claimant, as evidence, he says, of what prevents the Defendants from asserting, in purported discharge of s.58, anything other than a cursory examination.  

34.	I cannot ignore the fact, however, that counsel for the defendant invited me to take note of the nature of disclosure in this case, as being relative only to this stretch of pavement.  That, on the face of it, was an evidential proposition that I felt unable to take from counsel, but it did lead me to look with some care at these reports.  

35.	The north/south roads which mark the western and eastern side of Selfridges’ store are Orchard Street to the west and Duke Street to the east.  Immediately further to the west behind Oxford Street is Portman Square, so that one block to the west from Orchard Street is Portman Street.  At 6:08 there was a report at Portman Stores, or an empty shop, the precise location of which is unclear, but it may well be was quite close to Portman Street or Oxford Street, I know not.  At 6:12 there was reference to Phones4u and at 6:13 an opposite house by a tree; those two locations are unclear.  But by 6:14 it was the west side of Duke Street, and by 6:17, three minutes later, was the east side of Duke Street, at which point Mr O’Leary had only just got past Selfridges.  There is then reference to 6:20 and 6:21, then at 6:22 James Street, and at 6:23 Orchard Street.  The general pattern of those locations, many of which are very close to Selfridges store, lead me to conclude that it would be wrong to infer, from the mere fact that Oxford Street/40 section is covered by the documents, that they purport to cover the whole of that length of Oxford Street.  It seems to me that I must take notice of the fact, that whereas pre-Civil Procedure Rules one could expect full discovery, disclosure nowadays may well be limited to a selection of documents confined to those that a particular party may consider appropriate for disclosure.  And so, I have found that the production of those documents is not fairly to be regarded as evidence of a cursory approach to examination of the pavements.

36.	Before coming to my final findings and conclusion, I refer to some legal propositions to which my attention was directed.  In Meggs v. Liverpool Corporation [1968] 1All ER at page 1138, Lord Denning, the Master of the Rolls, gave guidance as to the approach in these cases:
“.. the highway authority are under a duty to maintain the highway and keep it in repair.  If it is in a dangerous condition so that it is not reasonably safe for people going along it, then prima facie there is a breach of the obligation to maintain and keep in repair.” 

	But then he refers to the statutory defence:
“At the outset, however, in order to make a prima facie case the plaintiff must show that the highway was not reasonably safe, i.e., that is, that it was dangerous to traffic.” 

	In Mills v. Barnsley Corporation 1PIQR at p291, Staine LJ said:
“... the plaintiff must prove that: (a) the highway was in such a condition that it was dangerous to traffic... (b) the dangerous condition was created by a failure to maintain... (c) the injury or damage resulted from such a failure.” 

	The learned judge referred to the need to avoid mechanical jurisprudence based upon strict measurements of above or below one inch.  He said that the test of dangerousness is one of reasonable foresight of harm to users of the highway, and that each case will turn on its own facts.  In the circumstances of the case one must look at the actual place where the accident occurred in order to determine the level of dangerousness.  Of course, the general condition and history of this pavement is useful evidence in assessing the defendant’s case under s.58.
 
37.	I have come to the conclusion that the absence of pointing which created a gap, coupled with the capacity to rock the accident stone to a depth of at least 15mm, with the risk that the forward stone would increase that up to 20mm, was reasonably foreseeable as a dangerous trap in itself, so that the primary liability, subject to the defence, is made out.  But, the statute requires the court to operate in the real world so as to recognise, that if the authority has taken such care as in all the circumstances was reasonably required to secure that part of the highway as being not dangerous, that they escape liability.  

38.	Specific matters have to be considered, first, the character of the highway, and the traffic which was reasonably to be expected to use it, that is in this case a pavement, with an enormous amount of pedestrian traffic.  Secondly, there is the standard of maintenance appropriate for a highway of that character, and used by such traffic.  That is, it seems to me, at the heart of this case.  It had seemed to me during the hearing of this case, that the extent of rocking paving stones, and the enormous amount of traffic may raise questions as to the original specification for the materials and method used for the base and identity of the particular stones laid.  And indeed, the particulars of claim in this case assert as a particular of liability, that the stones were not laid properly, and in a manner in which they were properly bedded and did not rock.  

39.	I have seen, in addition to the matters to which I have referred, photographs which show, what appear on the face of it, areas of acceptable and immaculate paving in this area.  I have seen some photographs where there are some, apparently, cracked stones, which may or may not be a purely cosmetic defect.  I have had evidence of a number of reported complaints, which have been dealt with by modest repairs, but relating that to the amount of traffic that must go over this pavement, and without constituting myself as an expert in civil engineering, I have come to the conclusion that whilst I can imagine a higher specification nearer to a level of perfection that may, in construction terms, have been capable of providing an even more long lasting and permanent finish, there is no evidence before me from which I conclude other than that these pavements were laid properly and properly bedded to a reasonable standard.  The fact of an accident of this kind cannot be said to prove liability.

40.	I have then gone on to consider the standard of maintenance in theory and practice, so far as can be assessed on this evidence.  There is no suggestion that once a month is other than reasonable and appropriate, to use the statutory words, for this length of pavement.  An inspection in the way Mr O’Leary described, as giving rise to a capacity to identify not only immediately visual defects, but also the indirect consequences of a rocking stone, is un-contradicted evidence from someone who has had many years’ experience in the trade.  I find that it is a reasonable method of inspecting the condition of stones.

41.	The setting of a yardstick, whilst perhaps anathema to courts in identifying what happened in an accident, is, it seems to me, an inevitable ingredient of inspections which have to determine whether or not a particular disparity of level needs treatment, and there is no evidence before me that 20mm is other than an appropriate measure.  In addition to monthly inspections, there are reactive inspections.  That, it seems to me, is supporting evidence of the attempt by the Defendants to have appropriate maintenance for this pavement.  And whilst, on the face of it, there are a number of repairs to this pavement carried out over a ‘short'ish’ period of time, bearing in mind the amount of traffic, I do not draw an inference from such repairs of any failure to implement a reasonable standard of inspection.

42.	I have concluded on all the evidence, that this pavement was in a state of repair in which a reasonable person could have expected to find it.  And I have concluded the local authority, the Defendants, did not know about this condition, and were reasonable in relying upon the systems they had introduced as a means of knowledge of those defects which they could reasonably be expected to know about.  

43.	The Claimant sustained a most unfortunate accident.  The paving stone was in a dangerous condition, as that term is used in the context of the case law in this area of negligence and breach of statutory duty, but I find that the Defendants succeed in establishing the defence under s.58 of the Highways Act.  Looking at the pleadings, it has not been established that there was a failure of adequate maintenance, or that, as it is said, in particular (3), they failed to repair the footway so as to remove the rocking paving stone, for that is in fact in effect an assertion of  res ipsa loquitur, which does not apply.  I have found that there was an adequate system in place which was implemented for inspection and maintenance.  The Defendants did properly inspect the footways, and they did thereby have a proper regard for the health and safety of pedestrians in Oxford Street.  They are not liable for the most unfortunate injuries sustained by the Claimant.