PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”

The judgment today in  Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the defect complained of. Photographs that did not show (or enable the court to deduce) length, width and depth could not prove this most basic element of the claimant’s case.

 “the judge described the photographs … as “almost entirely useless”.”

THE CASE

The claimant was cycling on a road when she fell off her bike due to the front wheel hitting a pothole.  She brought an action against the defendant highway authority. The case was dismissed at trial because, the judge held, “there is in my judgment simply not enough reliable evidence of the dimensions or conditions of the pothole for me to say it is more likely than not that it presented a real source of danger in the sense identified in Mills v Barnsley Metropolitan Borough Council“.

THE CLAIMANT’S APPEAL

The appeal was heard by Mr Justice Dingemans.  Clearly the evidence as to the size of the hole was of central significance.

THE EVIDENCE AT TRIAL ABOUT THE SIZE AND NATURE OF THE DEFECT

The claimant had arranged for photographs and measurements to be taken. However  the trial judge held these were not sufficient to prove the case.

1. On 8 July 2014 Mr Donoghue visited the scene and took photographs appearing at pages 151 and 152 of the trial bundle, enlarged copies of which were at pages 257 and 258 of the trial bundle, repeated at pages 303 and 304 of the trial bundle. Mr Donoghue had, because of safety concerns, placed a tape measure on the road and photographed it. The tape measure runs from 1 to 10 inches and is placed across the width of the pothole.

2. It is apparent that there was extensive questioning about these photographs at the trial. In the course of his evidence Mr Quashie marked the photograph at page 151 to show where he thought the base layer was in the pothole. He had done that with a green highlighter, and at the hearing of the appeal it was apparent that I had been given the trial bundles used by the witnesses which showed Mr Quashie’s original marking (copies were made of that marked photograph by both parties at the conclusion of the appeal). This showed green highlighting to the top edge of the pothole and to the top and right of what appears to be a piece of road material in the part of the pothole nearest to the roundabout.

3. As to width Mr Pennock submitted that the photograph at page 151 shows a pothole with a left hand edge beginning at 4 inches on the tape measure and ending at 8 inches curving out to 9 inches, meaning a width of between 100 and 125 mm. Mr Howe submitted that the edge could not be said to begin until 5 inches on the tape measure, and Mr Pennock said that there was at least a slope between inches 4 and 5. Mr Howe said that between inches 5 and 8 there is road material underneath the tape measure, and it is impossible to know what, if any, depth is shown for that material, meaning that it is impossible to measure the width. Mr Pennock said that there was a dip down and that the bottom of any pothole would undulate.

4. As to length Mr Pennock submitted that scaling off the tape measure (which shows inches) showed that the length from bottom to top of the pothole was 8 inches, being some 200 mm. Mr Howe submitted that the length of the pothole could not be said to be 8 inches. This was because there was road material towards that part of the relevant area nearest to the entrance to the roundabout, whose depth, if any, from the road surface was impossible to determine, which was next to the road material underneath the tape measure which extended up to the part of the pothole area nearest to the roundabout whose depth, if any, below the road surface was again impossible to determine.

5. As to depth Mr Pennock relied on the admission as to depth of the pothole at the time of the repair on 17 July 2014 as 40 mm deep and noted that both parties did not suggest that there had been any material change in the pothole after the accident and before repair. Mr Pennock submitted that pothole was the size of a dinner plate, but Mr Howe noted that Mr Pennock had made that submission at trial and it had not been accepted.

6. The judge noted Mr Quashie’s evidence about the depth and said at paragraph 24 of the judgment “all well and good so far, but even assuming that his best guess about depth is correct, that is of no help to the claimant unless the width of the pothole can also be established”. The need to establish the width of the pothole part appeared from the fact that Mr Quashie had said in evidence that he “was surprised that the photographs that he had taken showed something which could cause someone to come off a mountain bike” given that the tyres on the mountain bike were 2 ½ inches wide

PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”

The trial judge’s criticism of the photographs was made clear.

“At paragraphs 31 and 32 of the judgment the judge described the photographs taken by Mr Donoghue as “almost entirely useless”. The judge said that “it is impossible to say from those two photographs … what the width of the pothole is and Mr Donoghue told me – and I accept – that it was too dangerous when he was there on 8 July 2014 to attempt any more by way of accurate measurement. He did not think that the pothole did represent a danger which needed repair, but to be on the safe side he ordered its repair anyway …”

TRIAL JUDGE’S FINDINGS UPHELD ON APPEAL

The trial judge’s findings were upheld.  There was not enough reliable evidence for the claimant to be able to establish the size of the defect.

1. At one stage, after a quick look at the photographs taken by Mr Donoghue, I was attracted by the proposition that measurements as to width and length were there to be seen from the photographs. However, having had the benefit of the excellent submissions from both Mr Pennock and Mr Howe, and the opportunity to look again at the photographs taken by Mr Donoghue in the light of those submissions and to read again the judgment of the judge, I have come to the conclusion that the judge was right to find that “there was not enough reliable evidence of the dimensions or condition of the pothole to say it was it is more likely than not that it presented a real source of danger”. This is because it is not possible to determine what effect the road material underneath the tape measure, together with the road material in that part of the relevant area nearest to the roundabout, had on the measurements of the pothole, either using the photographs at page 151 and 152 of the trial bundle, or the enlarged copies of the same photographs at pages 303 and 304 of the trial bundle.