Council liability in cases of personal injury suffered on public highways

We take a look at the case of George Morriss v London Borough of Hillingdon [2025] EWHC.

In another significant ruling on liability for injuries sustained on public highways, the court reinforces the considerable evidentiary responsibility resting with claimants.  At a liability-only hearing, Deputy Judge Benjamin Douglas-Jones KC, assessed the council's duty under s.41 of the Highways Act 1980 (the Act), together with the regularly cited principles set out in Mills v Barnsley Metropolitan Borough Council [1992] PIQR and provided detailed judgment on the available evidence.

In a tragic accident, 24-year-old maintenance manager, Mr Morriss (the Claimant), suffered life-changing injuries when he crashed his motorbike, colliding with a wooden fence on his way home from work. The Claimant, noted as an experienced rider for his age, complained that a defective manhole cover (the second of two in the middle of the road on a bend) was to blame and brought his claim against the London Borough of Hillingdon (the Council).  The incident took place in daylight on a dry day and the Claimant was wearing suitable protective clothing.

The Claimant's evidence

The Claimant's evidence was interesting.  He said he remembered nothing of the accident for three days.  At that point, he remembered the front wheel of his motorbike definitely riding over the second manhole cover and losing traction.  Whilst the motorbike's traction system kicked in, the resulting collision proved unavoidable for the Claimant.  There was a discrepancy over which wheel it was, the Claimant having initially setting out in his letter of claim it was the 'rear wheel' which had lost traction, but this was later said to be incorrect.  The route was familiar to the Claimant as part of both his commute and pleasure rides but without previous incident.  He put this down to a new road surface which had been laid.  The Claimant maintained that he remembered the detail of the accident two years' later after returning to the scene with his brother.

His brother's evidence was that he was on the scene just five minutes after the accident and saw tracks on the road and scuff marks on the kerb and fence as well as damage to the fence.  It was he, the Claimant's brother, who had initially suggested to the police that the manhole cover was to blame, having slipped on one himself 15 years' previously.  He also took photographs a few days later which the Judge reviewed and concluded (together with the police report) that there were no marks on the road.

The Council's evidence

Monthly inspections were routinely carried out in accordance with the Well Managed Highway Infrastructure – Code of Practice 2016 (the Code) by trained, qualified inspectors and one such inspection took place three weeks before the incident.  The inspections concluded that neither of the manhole covers needed repair – usually demonstrated by a shiny and polished look.  One of the inspectors was a motorcyclist himself and commented that all ironwork can be a potential danger to motorcyclists and that he would avoid riding over manhole covers because of this.  Different inspectors carried out an inspection a week after the incident and, again, no defects were found.  A street scene inspector inspected the scene three months later and also confirmed no defect or slippery surface with 95% of it as new.  Another report referred to 90% of the surface area as having grip.

Expert evidence

Each party called their own expert, and a joint statement was produced.

The Claimant's expert referred to the Code of Good Practice for Highway Maintenance (Well Maintained Highways) (the COGP) under which highway authorities must carry out condition surveys and a skid resistance strategy for statutory requirements.  The inspections covered structural integrity, not skid resistance and these were not, therefore, compliant and a detailed risk assessment should have been carried out.  He thought this was the most dangerous site on a distributor road in all his 55 years' experience.

The Council instructed a highway engineer with 30 years' experience who also concluded that the manhole covers were shiny but not defective, with the inspections having been compliant.  The evidence posed that approximately 18,000 vehicles used that stretch of road each day and 11,000 to 16,000 motorcyclists every year, yet no other accidents involved a motorcycle and a manhole cover.  The Council contended that, whilst there was no specific criteria for worn manhole covers, it's not reasonable to have a risk assessment for every piece of road and ironwork and its maintenance policy was consistent with the Code with repairs carried out where necessary. The Council's expert added that the speed at which the bend in question could be taken without incident was significantly above the 30mph speed limit.

s.41

In terms of the potential breach of s.41 of the Act, DJ Douglas-Jones KC referred to Mills, noting that the standard is whether a highway defect constitutes a "real source of danger", as opposed to just any irregularity (a hollow or protrusion were given examples). Practitioners will be aware that Mills remains a leading authority, with a claim required to prove:

1. The road's dangerous condition was reasonably foreseeable so that users were at risk with continued use;
2. The dangerous condition was created by the failure to maintain/repair the highway; and
3. The injury/damage was caused by that failure.

The Judge exercised caution with the Council's expert's speed calculations but, having reviewed the evidence, considered the Claimant's expert testimonial of the road being 'extremely dangerous' to be exaggerated.  Given the repeated assessments of the manhole cover considering it was not defective, and applying Mills, assessing the risk in accordance with guidance provided by the claimant, the Judge determined the second manhole cover in question was not dangerous.

The Judge was not convinced by either the Claimant's or his brother's evidence that it was the second manhole cover that caused the accident.  He placed a large amount of weight for this on the Claimant being unable to recall the accident until revisiting the site with his brother who had suggested to police on the scene that the second manhole cover was to blame for the accident (following his own skid on a manhole cover in the past).  Instead, the Judge concluded the accident was probably down to momentary rider error.

Even though not strictly necessary to do so, the Judge opined in respect of the statutory defence, under s.58 of the Act; available where a claimant establishes Mills liability.  He commented that the Council's routine inspections were compliant with guidelines; carried out by qualified, trained staff in a suitable vehicle; all of which were in line with policy.  He was satisfied that, if the second manhole cover had posed a danger, it would have been identified as such and a work order duly scheduled.  He rejected the suggestion by the Claimant's expert that a bespoke risk assessment was necessary.

Key takeaways:

• Importance of clear record keeping and compliance with the COP by Highways Authorities;
• Highway Authorities need to ensure adequate risk assessment measures are in place, but these do not need to be bespoke for each independent man hole cover;
• Examine lay witnesses carefully; especially, where memories can fade;
• Choose your experts wisely …