PROVING THINGS 189: IF YOU WANT TO PROVE THE DEPTH OF SOMETHING – TAKE A RULER (OH, AND PHOTOGRAPHS)

In Nash v Hertfordshire County Council [2020] EWHC 3247 (QB) HHJ Lickley QC, sitting as judge of the High Court, dismissed the claimant’s claim for damages.  There were numerous witnesses and expert involved.

“They took photographs when they were at the scene and given the issues it is difficult to understand why they did not take photographs of the potholes with an object or measure to demonstrate depth.”

THE CASE

The claimant was injured whilst riding a bicycle on the road and was in collision with a van.  He did not allege liability on the part of the van driver, his case was that the collision occurred because of holes in the road that he was seeking to avoid at the time of the collision.

THE EVIDENCE AS TO THE DEPTH OF THE HOLES

The depth of the pothole was clearly a major factor in the trial.  The claimant’s solicitor gave evidence at trial.

“The claimant’s solicitor is also a witness of fact. He said that he attended the scene on the 14/4/16 with Wong Ru. He took photos that day (282-288). He said he and Mrs Wu measured the potholes by putting various objects and their hands into them. At their deepest they were 5-6 inches deep. He also attended on the 14/4/16 with Mr Franklin (see below). Workmen were present repairing the road surface at the corner in question.
In his oral evidence he said he had first been contacted by Mrs Wu on the 15/3/16 two days after the accident. Very few details were provided then so he contacted the police and spoke to PC Lister. On the 29/3/16 he had received an email from Mrs Wu advising him that the claimant had taken a wider line around the bend because of potholes. That email has been produced. Mrs Wu said ‘My brain is not functioning properly. Did you say there is no case on Dom’s accident? He said because the potholes in the road he is having to take a wider route’.
He accepted the depth of a defect was an important fact and that he had measured similar defects before with a ruler and taken a photograph. On this occasion it did not happen. He said the potholes were measured as he had described. He said the one that was 4/5 inches deep is the one further from him (T shaped) in photo p. 277. He said the depth was measured by hands, a pen and possibly a phone cover and was ‘assessed by him’. He said only one pothole was 4/5 inches deep the others were a variety of depths less than 4/5 inches. He made no notes at the time of which ones he meant. He said he could be sure of the depths based on his estimation.”

THE ESTIMATE OF DEPTH WAS NOT ACCEPTED BY THE JUDGE

The judge was unable to accept the evidence as to the depth of the pothole.  This played a role in the judge’s assessment of the state of the road at the date of inspection and whether the road was in a condition that posed a danger to users.

“I have considered the detailed submission both written and oral from both parties. Where there are disputes between experts I prefer the evidence of Mr Hopwood. He was straightforward, had worked as a highways inspector in the past, carried out detailed analysis of the available evidence, had been to the scene and obtained the weather reports for the relevant period for the location.
The defects that were present have never been measured accurately and with any certainty. The witnesses have no doubt done their best to estimate depths. I reject, for reasons advanced by Mr Hill and Mr Hopwood, the evidence of defects of up to 5 inches deep given by Mrs Wu and Mr Scarles. They took photographs when they were at the scene and given the issues it is difficult to understand why they did not take photographs of the potholes with an object or measure to demonstrate depth.
I find myself in a similar position to the judge at first instance in Walsh v Kirklees [2019] EWCH 492 who stated that ‘there is in my judgement 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 ..’
The best evidence now is that some of the defects may be up to 40mm deep. Two are located more central to the road and one by the verge. Although there is no magic in the depth of 40mm I accept that was the defendant’s intervention level for resolving category 1 defects and to that extent it is of some evidential value. That said a defect of less than 40mm if dangerous as defined in Mills and Preseli would mean a breach of S.41.”