Case No: B3/2011/1866

Neutral Citation Number: [2012] EWCA Civ 493
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION, Maidstone County Court
Mr Justice Eady
[2011] EWHC 1590 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/04/2012
Before:

LORD JUSTICE LONGMORE

LORD JUSTICE KITCHIN
and
SIR MARK WALLER
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Between :

	Josie Lawrence	Appellant	
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	Kent County Council	Respondent	

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(Transcript of the Handed Down Judgment of
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Simon Browne QC and Anthony Jounson (instructed by The Compensation Clinic)
 for the Appellant
James Dingemans QC and James Hawkins (instructed by Berrymans Lace Mawer LLP) 
for the Respondent

Hearing date: 27 March 2012
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Judgment
Sir Mark Waller: 
1.	This is a judgment of the court.
2.	This is an appeal from a decision of Eady J who allowed an appeal from a decision of His Honour Judge Caddick. Judge Caddick had found in favour of the claimant injured when she tripped. Permission was granted to bring this second appeal by Dame Janet Smith on the grounds that an issue of principle was involved, namely whether Eady J’s view as to the relevance or irrelevance of the evidence given by certain witnesses was correct. There is also in the result a cross-appeal by the respondents, the Kent County Council (the Council), seeking to uphold the decision of Eady J even if his view on the evidence were wrong.
3.	The appellant is Josie Lawrence. On 7th November 2006 she tripped over a manhole cover.  Her injuries were such that it was agreed between those acting for her and those acting for the Council that subject to liability she would be entitled to £5000.
4.	Before Judge Caddick her claim succeeded. He gave judgment in her favour on 4th November 2010. In his judgment he cited the well known cases on tripping. The judgment of Steyn LJ in Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291 will suffice, that judgment identifying what a claimant must prove and also emphasising that the duty must not be made too high, balancing the public need against the private interest:-
“For my part I find it a sterile exercise to make a comparison between the facts of reported decisions in tripping cases and the facts of the present case.  In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that:
(a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public;
(b)  the dangerous condition was created by the failure to maintain or repair the highway; and
(c)  the injury or damage resulted from such a failure.  Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority’s reliance on the special defence under section 58(1) of the 1980 Act, namely, that the authority had taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic.  On this aspect the burden rests on the highway authority.”
Steyn LJ then found that two findings of fact could not be sustained and continued in the following terms:-
“The short point is whether the judge was right in these circumstances in regarding this as a danger to women.  Like the judge, I do not consider that it would be right to say that a depression of less than one inch will never be dangerous but one above will always be dangerous.  Such mechanical jurisprudence is not to be encouraged.  All that one can say is 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.  Here the photographs are particularly helpful.  In my judgment the photographs reveal a wholly unremarkable scene.  Indeed, it could be said that the layout of the slabs and the paving bricks appears to be excellent, and that the missing corner of the brick is less significant than the irregularities and depressions which are a feature of streets in towns and cities up and down the country.  In the same way as the public must expect minor obstructions on roads, such as cobblestones, cats eyes and pedestrian crossing studs, and so forth, the public must expect minor depressions.  Not surprisingly, there was no evidence of any other tripping accident at this particular place although thousands of pedestrians probably passed along that part of the pavement while the corner of the brick was missing.  Nor is there any evidence of any complaint before or after the accident about that part of the pavement.  Like Mr Booth, I regard the missing corner of the paving brick as a minor defect.  The fact that Mrs Mills fell must either have been caused by her inattention while passing over an uneven surface or by misfortune and for present purposes it does not matter what precisely the cause is.
Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts ever year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life.  It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed.  This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest.  The judge’s ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was unfortunately injured in this case.  The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous.  In my judgment the plaintiff’s claim fails on this first point.
In view of this conclusion on the first point, it is unnecessary to consider the judge’s conclusion on the special defence under section 58 of the Act or the issue of contributory negligence.”
5.	It will be noted also of relevance to this appeal that Steyn LJ referred to the view of Mr Booth, the Barnsley Council’s Inspector, that the defect in that case was “minor”, without any suggestion that his view was “irrelevant”.   
6.	Returning to the judgment of Judge Caddick, he having set out the law, then went through the evidence. He found that the claimant’s right foot had come into contact with the edge of the cover frame either of the leading edge or the beginning of the long edge at the right hand corner.  In making an assessment as to the height of the protrusion of those edges he was not assisted by the fact that the Surveyor who came to inspect immediately after the accident, a Mr Cunningham, did not have a gauge, but Mr Cunningham had used his mobile phone laying it down beside the cover at the right hand corner and with that assistance and the aid of the photographs the judge found that the right hand corner of the cover frame of the manhole protruded “at least 15mm”.
7.	He also found that the manhole was in a pavement in the middle of a heavily populated area and that the pavement was frequently used by people going about their business and had been frequently used by the claimant herself.  There had been no previously reported accident.
8.	The judge in paragraphs 14 to 16 dealt with the evidence which has given rise to this appeal.  First he had the evidence of a purely factual witness, the claimant’s daughter, Mrs Rose. She saw the manhole cover within days after the accident and knowing her mother had suffered an injury. The judge said this about her evidence:-
“There is no issue that it is the same manhole cover and Mrs Rose took the photograph at p.24.  She told me that from her own point of view she thought it was an obviously dangerous feature in the pavement and was concerned that it should have been left like that to a danger of pedestrians.  I bear in mind that I found Mrs Rose a perfectly sensible woman, now 60 years of age and a bank customer service officer.  I also bear in mind that being C’s daughter, and no doubt being herself upset to find C’s injury and discomfiture, she would not be a completely independent witness in the sense of not being immune from any emotional reaction to the situation.  But there it is, that was her impression and I give it some but not great weight in the totality of what I have before me.”
9.	In fact the transcript of Mrs Rose’s evidence [which was of course not available to Judge Caddick but was also not before Eady J] records Mrs Rose as not using the word ‘dangerous’. She is recorded as saying she took a photo when inspecting after she got back from holiday “because I don’t think it’s right” and because “Obviously when my mother walks, she wears glasses, so she always looks ahead, she does not walk with her head down, so I think anyone could have possibly tripped in the same way, that was the reason”.
10.	The judge then turned to the evidence of the Council’s Surveyor, Mr Cunningham. His evidence by his written statement was:-
“Kent County Council’s criteria for an actionable defect, if there are defects evident within the carriageway are for that defect to be over 50mm in depth.  For footways, the actionable criteria is 20mm in depth.
. . .
Exhibit “JM2” is a photograph taken at the joint site meeting.  This photograph shows that the height of the manhole cover clearly did not exceed the mobile phone.  I estimate the height of the manhole cover to have been around 10 to 15 millimetres.”
   The judge summarised the evidence in this way:-
“15.  We then have the evidence of Mr Cunningham apart from that which I have already referred to.  At page 72 in the bundle there is the instruction sheet that he gave for work to be done.  What happened is that having had his inspection on 31st January, Mr Cunningham took the view that the manhole cover did need repairing.  KCC have three categories of urgency: first, those defects that are glaringly obviously dangerous and need immediate action – a two hour case; second, those that still need urgent action but not so urgent – a three days case; third, those that still require action now but which can take their turn with the rest – these take a few days longer.  Mr Cunningham wrote by hand on his report against details of location etc: “make safe small trip round manhole!”.  He translated that in evidence as meaning that it is an instruction to go round to that manhole and deal with the small trip, not digging it all out right the way round, but in effect making good the tarmac and bringing it all back up flush, which of course is what is to be expected.  That particular point of interest in evidential terms is what he meant by the term “make safe”.  The evidence before me is that “make safe” is not a term of art, it is not a category which the inspector would use to signify a particular kind or level of urgency.  It is his phrase and it means just what it says.  The use of those words to me, used as a piece of ordinary language as it was by Mr Cunningham, clearly implies that what was found was not safe, it should not be left in that state and it should be repaired.  That is what it conveys to me; I believe that is the impression that Mr Cunningham had at the time and what led him to say and use those words.
16. In his statement and again in his oral evidence, Mr Cunningham says that actually the repair did not really need doing at all: “In fact I gave instructions for the work to be done not because it needed to be done but out of customer care”.  He explained that having had a complaint from an old lady who had tripped and hurt herself and got very upset about it and bearing in mind she is a local tax payer and that only a small amount of work was needed to be done to repair, it was the least he could do in terms of customer care to have it put right.  That is his explanation and the explanation he gives now.  I do not find anything along those lines, however, either in the work instruction on p.72, or in the report of the incident at p.64.  It seems to me unlikely that KCC, strapped for cash even in 2007 – of course much more now – would be doing work for which they simply genuinely did not think needed to be done.  I find it difficult to accept the gloss that Mr Cunningham puts on it now to explain why he gave the instruction for repairs to be done.  Much more likely is that he did find that the trip needed to be made safe as he recorded and gave instructions accordingly.”
11.	It is clear that the judge was not much impressed by Mr Cunningham but what Mr Cunningham relied on was a report prepared by him immediately following his inspection. The relevant extract is at page 176 of the appeal bundle. The page records in relation to the manhole after his inspection “make safe Small trip round m/hole”.  The report has along the top three possible courses which the Council might take to remedy any defect –“2 hour/3 DAY/ general maintenance works” and on page 176 “general maintenance works” is circled. When the judge was pressing Mr Cunningham as to what he had in mind when recording “make safe” Mr Cunningham responded as follows:-
“Q.  Do you accept that the expression “make safe” normally means it is not safe at the moment to “render it safe”?  A. I accept that, yes.
Q. You do accept that.  That was your assessment of what was needed to make it safe?  A. You’re going along the lines of me feeling it was dangerous ---
Q. I do not know, you are the one who wrote this?  A.  I didn’t feel it was dangerous but that is what was written on the ticket to get it done.  If I’d have felt it was dangerous, and this is why I explained the general maintenance works, you can see at the top of the ticket – unfortunately these are our old tickets that we used to use but [if] I [had seen] something that was dangerous I would have quite clearly circled “2 hour” or a “3 day” response.  For something that is dangerous that is how we respond, and I haven’t responded in that way, I’ve circled the “general maintenance works” which basically they get done in amongst the programme of other works that isn’t dangerous that we get done.”
12.	That answer was not challenged either by the judge or by counsel for the claimant as being untruthful, i.e. it was not suggested to Mr Cunningham that he had thought the manhole cover was in fact dangerous but decided to ring “general maintenance” rather than get it dealt within a short space of time.
13.	The judge then reached his conclusion in these terms:-
“That is about all the evidence that I have, save that I should add that there is no evidence before me of any similar accidents on the pavement of that road either before or after C’s accident.  I have to stand back therefore and ask myself: do I draw, as I am invited to do by C, the conclusion that on the balance of probabilities the protruding manhole cover was a danger to pedestrians in the sense that in the ordinary course of human affairs danger may reasonably have been anticipated from its continued use by the public.  Looked at in that neutral and objective way I come to the conclusion that plainly that test has been met.”
It will be noted that in that paragraph there is no reference to having to bear in mind that any duty imposed must not be too high having regard to the balance that must be struck between the public and the private interest. Mr Browne QC submits the judge clearly had that in mind because he had cited fully from Steyn LJ’s judgment and had that important principle set out in his judgment in earlier paragraphs.
14.	The Council appealed. Their main concern was that the finding imposed too high a duty and they were anxious that it might be used against them in relation to other uneven surfaces. Their policy (as Mr Cunningham had said) was to treat protrusions of 20mm as needing attention but not protrusions of less than 20mm. 
15.	The appeal came before Eady J and by a judgment handed down on 22nd June 2011 he allowed the Council’s appeal. He directed himself on his approach as an appellant Tribunal in the following way:-
“10. These statements of principle are clearly fundamental to the present appeal. I was reminded also of the strict tests to be applied in the modern appellate regime, whereby an appeal from the county court proceeds by way of review in the High Court, rather than re-hearing.  In particular, I was shown the words of Thomas LJ in Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748 at [16], albeit in the different context of a decision on abuse of process:
“The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms.  However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him.”
In this context sometimes reference is made to the speech of Lord Fraser in G v G [1985] 1 WLR 647, where he stated that “… the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible”.”
16.	He then reached the conclusion that he could not say that the judge had reached a conclusion “beyond the reasonable ambit within which disagreement is possible”. G v G was concerned with an exercise of discretion and Eady J is using the language in G v G. Eady J found furthermore that the judge had not misunderstood the nature of the statutory duty or applied the wrong test. He however then found that he took into account irrelevant matters, i.e. the views of witnesses of fact, Mrs Rose and Mr Cunningham. His opinion was that those views carried no weight whatever – they were quite irrelevant. It is because of that finding that Dame Janet Smith gave permission to appeal.
17.	Eady J then took the view that because Judge Caddick had taken account of irrelevant matters he was free to look at the matter afresh and take his own decision. He found that the manhole cover was not dangerous, saying:-
“31.  It emerges from the judgment of Steyn LJ that one can       take into account, if it be the fact, that no evidence has emerged of any other tripping accident having occurred in the same spot if it is a well-used thoroughfare.  At paragraph 6 of his judgment, it was found by the Judge that Newbury Avenue was “in the middle of a densely populated residential area”.  There is no evidence of anyone else having tripped at this spot.
32.   Looking at the photographs, I have to say as a matter of personal impression that the manhole cover appears unremarkable.  Walking down the Strand, or indeed any other urban pathway, one comes across potential tripping hazards all the time.  Of course, I accept that these present correspondingly increased risks to the elderly, the infirm or young children.  But I bear in mind the words of Dillon LJ from the Mills case, cited above at [7].  I am afraid I cannot conclude that this protrusion was such that “a reasonable person would regard it as presenting a real source of danger”.  Conducting a balance between public and private interests, I must recognise that highways authorities simply cannot achieve perfection and provide over the thousands of miles of pavement for which they are responsible a surface “which is entirely free from all irregularities or changes in level at all”.”
18.	Eady J’s approach was that of an appellate court where what is under consideration is the exercise of a discretion and it seems that it was common ground between counsel that this was the proper approach for him.  The result in many cases will not be very different but we believe that Eady J was misled in approaching the matter in the way he did.
The correct approach of an appellant court to appeals on fact
19.	Albeit at times there may seem to be similarities between appeals from the exercise of a discretion and appeals on fact or inference to be drawn from facts, they are not the same, and the right approach or the ability of a Court of Appeal to interfere depends on the circumstances of particular cases. In Datec Electronics Holdings Ltd v UPS Ltd [2007] 1 WLR1325 approval was given to the way in which Clarke LJ (as he then was) put the matter in Assicurazioni Generali SPA v Arab Insurance Group [2003] 1 WLR 577, 580-581.  It is unnecessary to cite the whole paragraph set out in paragraph 46 of Lord Mance’s speech.  The summary is in these terms:-
“Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellant court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence.”
20.	If one looks at the authorities cited to us as to how the question of dangerousness has been considered in the past one finds in Littler v Liverpool Corporation [1968] 2 All ER 343 Lord Denning saying that a finding that something was dangerous was a finding of fact; in James v Preseli Pembrokeshire District Council [1993] PIQR 144 Ralph Gibson LJ says “in drawing the inference of dangerousness the court must not set too high a standard”.  “Inference” is also the way Steyn LJ put it in Mills [see the quote above]. Furthermore in the authorities cited to us time and again one finds the Court of Appeal reviewing whether the judge was right to impose a duty on the facts as found by him. Nothing said by Clarke LJ or Lord Mance was in our view intended to alter the approach of an appellate court to this type of case, and since part of a Court of Appeal’s function is to strive for consistency, it is important that it retains this degree of oversight.
21.	Of course the court must have regard to the advantage the judge had in hearing the evidence and the whole case; and much as it does in considering the exercise of a discretion it will examine whether the findings of primary fact are justified; whether the judge relied on evidence which was not admissible or placed too great a reliance on evidence; and whether a judge misdirected himself. But even if there is no misdirection the appellate court is entitled to assess for itself whether on those facts an inference or finding of dangerousness, to an extent which imposes a duty on the Council, was justified. 
22.	So in this case Eady J was in our view misled insofar as both parties conducted the case on the basis that he was exercising a discretion. He was of course right to examine whether the judge misdirected himself or relied on evidence which he should not have relied on and to that we now turn.
Was he right to hold as irrelevant the views of Mrs Rose and Mr Cunningham?
23.	It is trite law that opinions are the province of experts. It is furthermore trite law that even experts do not decide cases – judges decide with the help of experts. It is however very common certainly in civil cases for a factual witness to give evidence and in order to describe that on which they are giving that evidence express an opinion. This is recognised by section 3 of the Civil Evidence Act 1972 to which unfortunately Eady J’s attention was not drawn. That section provides:-
“3. Admissibility of expert opinion and certain expressions of non-expert opinion.
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.”
24.	In Phipson on Evidence 17th Edition paragraphs 33-88 under the heading “Opinions of non-experts” there appears the following:-
“Although in general inadmissible, the opinions or beliefs of witnesses who are not experts are admissible in proof of the matters mentioned below, on grounds of necessity, more direct and positive evidence being often unobtainable.  Moreover, it has long been thought, and for civil cases it has now been declared by s.3(2) of the Civil Evidence Act 1972, that non-expert opinion may be received as evidence of the facts intended to be conveyed by that expression of opinion.  In Rasool v West Midlands Passenger Transport Board an account of a witness of a road accident was received notwithstanding the fact that it contained the words “the bus driver was in no way to blame for the accident”.  The court treated them as admissible although the 1972 Act did not fall to be considered, and the point was not argued.”
25.	Furthermore time and again one sees references to the opinion of a factual witness in judgments in the authorities before us without any suggestion they are totally irrelevant. Thus in Mills v Barnsley Metropolitan Borough Council Steyn LJ refers to the unchallenged evidence of Mr Booth, the Council’s Inspector, that if he had seen the missing corner of the brick he would not have regarded it as a problem and would have treated it as a minor defect . . . While the judge was not bound to accept Mr Booth’s view as to the relative importance of the defect, it is not clear what inference he drew . . .”.  In Uren v Corporate Leisure (UK) Ltd & Another [2011] EWCA Civ 66 the Court of Appeal criticised the judge for thinking that “what spectators thought” about the dangerousness of a game was irrelevant and thought the judge was wrong to disregard the impressions of eye-witnesses. Perhaps the most striking case is that of Dalton v Nottinghamshire County Council [2011] EWCA Civ 776 where Tomlinson LJ, in dismissing an appeal without calling on the respondents, approved the judge having placed great reliance on the view of the Council’s surveyor that a protrusion was dangerous.
26.	Of course the weight to be given to such evidence will depend on many things. In the instant case Mrs Rose was the claimant’s daughter and thus not independent. Mr Cunningham was the surveyor who inspected the manhole cover after the event and might have borne some responsibility for any failure to repair and thus evidence against his interest might be more relevant than evidence which sought to lessen his responsibility.
Discussion
27.	Thus the situation is (1) Eady J, because that was the way it was argued before him, approached the matter as a matter of discretion which placed too high a hurdle on the appellant Council if they were to reverse Judge Caddick; (2) Eady J approaching the matter on that basis felt free to consider the matter afresh on the basis that certain evidence was irrelevant but he was wrong so to do although the evidence may not have carried great weight; but (3) when he came to consider the matter afresh Eady J concluded that the judge was wrong in holding that this manhole cover was dangerous. 
28.	We think that Eady J was right in his ultimate conclusion but would reach the result by a slightly different route and one aided by having before us a transcript of the evidence which Eady J did not have.
29.	We do not think the views of Mrs Rose or Mr Cunningham were irrelevant but we think that His Honour Judge Caddick put Mrs Rose’s evidence a little higher than she had in fact put the matter herself. We also think that Judge Caddick was a little unfair in concluding that Mr Cunningham’s view as to the safety of this manhole cover was that it was in serious need of repair. 
30.	The only fair view of Mr Cunningham’s opinion at the time of his inspection flows from the document he filled in. Unless he was being less than honest when he filled in that document and no one put that to him, as his answer in his evidence as quoted above demonstrates he thought that something should be done simply as a matter of routine maintenance and that if he had thought it dangerous he would have ringed either 2 hours or three days. It would be right to discount that evidence somewhat because Mr Cunningham is far from an independent witness but not fair in our view to construe what Mr Cunningham said on the report as amounting to some form of admission as to dangerousness.
31.	If the evidence of Mrs Rose and Mr Cunningham cannot be put as high as the judge put it, the question is whether there is evidence from which the judge could conclude that this manhole protruding to the extent of 15 mm was dangerous to an extent that should impose a duty on the Council to have eliminated it.  In our view there was not. We are inclined to think that the judge in his conclusion in sympathy for the claimant failed to keep in mind balancing the public interest and the private interest but, whether that is so or not, we agree with Eady J’s conclusion. 
32.	We accordingly dismiss the appeal.