The Karpasitis Principle: Highway Authorities’ Duty of Care for Grass Verges and the Evidential Limits of the Section 58 Defence

1. Introduction

Karpasitis v Hertfordshire County Council ([2025] EWCA Civ 788) is a pivotal Court of Appeal decision that reshapes two important aspects of English tort law:

Substantive Duty: It confirms that a large hole in a grass verge can constitute “disrepair” under s.41 of the Highways Act 1980 where use by pedestrians or cyclists is reasonably foreseeable, thus extending the highway authority’s maintenance duty beyond the metalled surface of the carriageway or footway.
Evidential Framework: It clarifies that, when cross-examining an opposing witness, a party may rely on discrete passages of a statement served by the other side without being forced to “adopt” its entirety. This limits the availability of the s.58 “inspection defence” where the authority’s documentary record is demonstrably unreliable—in this case, by GPS data.

The appeal arose from catastrophic spinal injuries suffered by Mr Demetrios Karpasitis when his bicycle struck a concealed hole whilst overtaking a jogger on a grass verge adjacent to the A10 near Cheshunt during the first COVID-19 lockdown. At first instance, a Deputy High Court Judge dismissed the claim, finding that the hole did not exist at the last inspection and that the Council had established the special defence under s.58. The Court of Appeal overturned that decision.

2. Summary of the Judgment

Delivering the lead judgment, Bean LJ (with Coulson and Andrews LJJ concurring) held that:

The hole rendered the verge dangerous within s.41, attracting the authority’s absolute duty to maintain.
The judge below erred in excluding the GPS data and in treating the highways inspector’s untested witness statement as conclusive evidence of a walked inspection. On a proper evidential approach the inspection had not occurred, so the Council failed to prove it had taken “such care as was reasonably required” for the purposes of s.58.
Accordingly, primary liability was established; contributory negligence remained at one-third as assessed below.
In light of the statutory finding it was unnecessary to revisit the alternative common-law negligence claim, though the court hinted that the absence of dismount signs might also have supported liability.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Burnside v Emerson [1968] 1 WLR 1490 – formulated the “ordinary traffic” test under s.41. The Court of Appeal confirmed that “ordinary traffic” is a flexible factual concept; here it included pedestrians and foreseeable cyclists who might step or ride onto the verge.
Goodes v East Sussex CC [2000] 1 WLR 1356 – established that the duty is to keep the highway reasonably passable and safe. Bean LJ relied on this to emphasise safety rather than formal classification (carriageway versus verge).
Mills v Barnsley MBC [1992] PIQR 291 – warns against equating “needs repair” with “dangerous”. The Court reconciled this by pointing out that the verge hole satisfied both concepts.
Property Alliance Group v RBS [2018] EWCA Civ 355 – relied upon by the trial judge to insist that a party cannot cherry-pick from an opponent’s witness statement. The Court of Appeal distinguished it: it concerns adduction of evidence not the use in cross-examination to test credibility.
The Filiatra Legacy [1991] 2 Lloyd’s Rep 337 – recognised the narrow circumstances in which a party may distance itself from its own witness. Bean LJ used it to show that an opponent may discredit parts of another party’s statement when fairness and the overriding objective require it.
R (Kind) v Newcastle CC [2001] EWHC 616 – confirmed that verges need not be maintained like carriageways. The Court distinguished it on facts—the claimant sought motorway-level resurfacing, not repair of an isolated hazard.

3.2 The Court’s Legal Reasoning

Dangerousness and “ordinary traffic”: Substantial evidence showed that cyclists commonly used the footway and occasionally the verge. A pedestrian might equally step onto the verge. Thus, the hole created a real risk for foreseeable users and breached s.41.
Rejection of the s.58 Defence:
- The statutory burden lies on the highway authority.
- GPS data—disclosed by the Council—proved the inspector’s vehicle stopped for only three minutes; a genuine walked inspection was impossible.
- The authority’s inspection record was a “cut-and-paste” of a six-month-old report, undermining credibility.
- Because the inspection never occurred, the Council failed the s.58 criteria (particularly factors (a)–(d) of s.58(2)).
Evidential Handling: The Court held that cross-examination may cite selective passages of an opponent’s witness statement to correct misleading testimony without formally adducing the entire statement. Forcing a party to “have its cake or eat it” (the “cakeism” objection) is inconsistent with CPR Part 1’s overriding objective.
Contributory Negligence: The appellate court found no error of principle in the 33 % reduction; authority from Jackson v Murray obliges appellate restraint.

3.3 Likely Impact of the Judgment

a) Highways Management:
Local authorities must revisit inspection protocols for grass verges, especially where footways are known to attract cyclists or pedestrians. Holes or ruts over 100 mm may now demand prompt intervention or clear evidence of timely inspection.

b) Litigation Strategy:
Defendants can no longer rely on stylised inspection records if objective data (e.g., GPS, telematics) contradicts them. Parties should expect closer judicial scrutiny of digital trail evidence.

c) Evidential Practice:
The ruling curtails a tactical misuse of CPR 32.5(5)—opponents may deploy targeted extracts of a statement for impeachment purposes without “adopting” the witness, so long as fairness is preserved.

d) Cycling & Shared-Use Infrastructure:
Authorities can be liable for defects on verges bordering cycle-pedestrian paths even where cycling is (arguably) unauthorised. Expect more claims and, potentially, clearer signage and maintenance of marginal strips.

4. Complex Concepts Simplified

Highway / Verge: A “highway” includes every part of land between the boundaries (hedges, fences), not just the paved section. A grass verge is therefore part of the highway.
Section 41 Duty: An absolute statutory obligation on the highway authority to keep the highway in reasonable repair so that ordinary users are not endangered.
Section 58 Defence: A statutory “reasonable care” defence. The authority must prove an adequate inspection/maintenance system and its proper execution in the particular case.
Normal/Ordinary Traffic: The typical users reasonably expected on the particular highway (here: pedestrians and cyclists on the footway and verge).
Category 1 vs Category 2 Defects: Internal maintenance codes often rank hazards by urgency. Although useful, they do not by themselves determine legal “dangerousness.”
Adducing a Witness Statement (CPR 32.5): A party that serves a witness statement is generally required to call the witness unless the court orders otherwise. Merely referring to parts of the statement during cross-examination does not equal “adducing” it.
Hostile Witness: A party may cross-examine its own witness whom it calls if the court declares that witness hostile. The rule is different when a statement belongs to the opposing party.

5. Conclusion

Karpasitis establishes a significant twin precedent. Substantively, it confirms that a grass verge may be in actionable disrepair when reasonable users might encounter it; highway authorities must therefore monitor and remedy verge defects with the same diligence applied to footways where foreseeable traffic demands it.

Procedurally, the Court of Appeal has cautioned trial judges against rigid or formalistic application of CPR 32.5. Litigants may deploy selective extracts of an opponent’s statement to expose inaccuracies, especially where independent documents (such as GPS logs) contradict that statement. The judgment underlines the primacy of reliable contemporaneous evidence and the CPR’s overriding objective to deal with cases justly.

For practitioners, the case is a reminder to:

Corroborate inspection records with independent data;
Ensure frontline witnesses (inspectors, contractors) are available for cross-examination; and
Anticipate that verge hazards can trigger full s.41 liability when normal users—pedestrians or cyclists—face foreseeable danger.

Ultimately, the Karpasitis Principle bridges a practical gap in highway maintenance law and refines the evidential tools available to challengers of the section 58 defence, reinforcing both public safety and procedural fairness.