Application of rigid policy does not prove reasonable care taken

Stephen McClenaghan (plaintiff/ respondent) v Department of the Environment for Northern Ireland (defendant/ appellant).

Roads - Statutory duty to maintain - Personal injury - Policy defining reparable defects - Roads (Northern Ireland) Order 1980.

In the High Court of Justice in Northern Ireland (before Mr Justice Girvan); judgment delivered 28 February 1996.

WHEN attempting to prove that it took such care as in all the circumstances was reasonably required to secure that part of a road was not dangerous for traffic, it is not sufficient for a roads authority simply to show that it unthinkingly applied a policy which provided that, if a defect in a footpath did not fall within a rigid definition of what constituted a "reparable defect", then it would not be repaired. The road authority's absolute duty to maintain the roads requires it to take account of the location and condition of the individual road in question.

Mr Justice Girvan so held in dismissing an appeal by the Department against a finding that it was liable for the plaintiff's personal injuries arising out of a tripping accident.

The relevant provisions of Article 8 of the Roads (Northern Ireland) Order 1980 are as follows:

"(1) The Department shall be under a duty to maintain all roads and for that purpose may provide - such maintenance compounds as - it thinks fit."

"(2) In an action against the Department in respect of damage resulting form its failure to maintain a road it shall be a defence... to prove that the Department had taken such care as in all the circumstances was reasonably, required to secure that the part of the road to which the action relates was not dangerous for traffic."

Jonathan Mercer BL for the plaintiff/ respondent; Fintan Quinn BL for the defendant/ appellant.

MR JUSTICE GIRVAN said that on 11 September 1993 the plaintiff was walking along a street in Newtownards, County Down. He stumbled against the edge of a fire hydrant and fell off the kerb, fracturing his lower left leg. On 30 June 1995, His Honour Judge Markey in the County Court found the Department of the Environment liable and awarded the plaintiff £2,000 damages. The Department appealed, and the case was re heard by Mr Justice Girvan.

Engineers for both parties produced measurements of a depression in the footpath at the point at which the plaintiff stumbled. Although the measurements ranged from 15 mm to 19 mm, the engineers for both parties accepted that the depression presented a hazard to pedestrians. Mr Justice Girvan agreed.

Mr Justice Girvan said that the Department sought to escape liability by invoking its policy on the repair of defects on highways, whereby only defects more 20 mm deep would be repaired.

Referring to his own judgment in Keenan v Department of the Environment (unreported), Mr Justice Girvan said that two questions arose in cases involving an alleged breach of the Department's duty under Article 8 of the Roads (Northern Ireland) Order 1980. First, was the road in a dangerous state as a result of a failure to repair and maintain? Second, if so, had the Department taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the road was not dangerous for traffic?

Mr Justice Girvan said that the test of dangerousness was an objective test. As Lord Denning said in the case of Morton v Wheeler (31 January 1956, Bar Library transcript No 33), in a passage approved by the English Court of Appeal in Rider v Rider [1973] QB 505 - "If a reasonable man would say `I think there is quite a chance that someone going along the road may be injured if this stays as it is', then it is a danger; but if the possibility of injury is so remote that he would dismiss it out of hand saying of course it is possible but not in the least probable, then it is not a danger."

Mr Justice Girvan accepted that a rigid and mechanical definition of what constituted a reparable - detect, such as the 20 mm threshold adopted by the Department, would simplify the inspection and repair of roads, and consequently limit expenditure.

However, the rigid and unthinking application of such a policy ignored the fact that defects of less than 20 mm could be real sources of danger, depending on their location (see Rider v Rider, at 518), and on the condition of the individual road or footpath.

Accordingly, Mr Justice Girvan concluded that where, as here, there was a clear and obvious danger which could easily have been removed by minor repairs, the Department could not avail of the Article 8(2) defence simply by showing that it would have run contrary to Departmental policy to have repaired that defect.

The fact that the Department might incur additional expenditure if required to repair defects under 20 mm was only one of the factors to be considered by the court when addressing a defence put forward by the Department under Article 8(2): see Frazer v Department of the Environment [1993] 8 NIJB 22, at 39, per Mr Justice Sheil.

The Department's appeal would be dismissed, and the County Court judge's decree affirmed.

Solicitors: Boyd Rice & Co (Newtownards) for the plaintiff/ respondent; Crown Solicitor for the defendant/ appellant.