Karpasitis v Hertfordshire County Council

Factual and Procedural Background

On 22 April 2020, during the first Covid-19 lockdown, the Plaintiff, aged 42, was cycling on a familiar route in Hertfordshire along a shared footpath and cycle path near the A10 dual carriageway. The path narrowed north of the Paul Cully bridge without signage indicating any change in use. While overtaking a jogger on the grass verge adjacent to the path, the Plaintiff fell due to a hole in the verge, sustaining serious injuries that ended his employment as a social worker. The Defendant is the highway authority responsible for the grass verge, footway, and carriageway where the accident occurred.

By consent, a split trial was ordered to first address issues of breach of duty, causation, and contributory negligence. The liability trial occurred before a Deputy High Court Judge in March 2023, who dismissed the claim in October 2023. The Plaintiff was granted permission to appeal in February 2024.

Legal Issues Presented

1. Whether the Defendant breached its statutory duty under section 41 of the Highways Act 1980 by failing to maintain the highway in a safe condition.
2. Whether the accident was caused by any such breach.
3. Whether the Defendant had established a statutory defence under section 58 of the Highways Act 1980 by showing reasonable care.
4. Whether a common law duty of care arose from any omission or positive act by the Defendant, including the failure to erect signage indicating the end of a cycle path.
5. Whether the Plaintiff was contributorily negligent and the appropriate apportionment of fault.

Arguments of the Parties

Appellant's Arguments

• The Defendant failed to discharge the statutory defence under section 58 by not adequately inspecting or maintaining the verge where the hole was present.
• The Defendant owed a common law duty of care to cyclists to provide clear signage and safe conditions, and the failure to erect a sign indicating the end of the cycle path was negligent.
• The judge erred in accepting the Defendant's evidence regarding the absence of the hole at the last inspection and in rejecting the Plaintiff's case on common law duty.

Respondent's Arguments

• The Defendant relied on a Defect Management Approach requiring inspections every six months and submitted evidence that no defect was noted at the relevant location on 13 February 2020.
• The hole was not present at the last inspection and likely developed shortly before the accident.
• The Defendant argued no common law duty arose from omissions such as failure to erect signage and that the Plaintiff was not entitled to cycle on the verge or footpath.
• The Defendant contended that the Plaintiff’s contributory negligence should be assessed at 50%, not 33%, due to the Plaintiff’s choice to cycle on the verge.
• The Defendant challenged the admissibility of the Plaintiff’s cycling expert evidence and disputed the dangerousness of the defect under section 41.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed statutory and common law claims arising from the accident on the grass verge adjacent to a footpath and cycle path. Under section 41 of the Highways Act 1980, the court considered whether the highway was maintained in a safe condition for ordinary traffic. It held that cycling on the grass verge was foreseeable and constituted ordinary use, thus attracting the statutory duty to maintain.

The court examined the Defect Management Approach (DMA) employed by the Defendant, which categorizes defects into Category 1 (urgent) and Category 2 (less urgent). The court rejected the Defendant's argument that Category 2 defects are not dangerous, finding the hole was dangerous and required repair, though not necessarily urgent. The court emphasized that dangerousness is a matter for inspector judgment, not solely DMA categorization.

Regarding causation, the court found the defect caused the accident and that the Plaintiff would have complied with signage prohibiting cycling, had such signage been present, negating the accident.

On common law negligence, the court held no duty arose from omission to erect signage, as this was not a positive act creating danger, and the absence of signs was consistent with statutory presumptions about footpath use by cyclists.

Critically, the court scrutinized the Defendant's evidence from the highways inspector (Mr Cooke). GPS tracking data contradicted Mr Cooke’s witness statement that he conducted a walked inspection on 13 February 2020. The court found the GPS data more reliable and concluded no such inspection took place. Consequently, the Defendant failed to prove the statutory defence under section 58 that reasonable care was taken to secure safety.

The court also addressed evidential rules on using part of a witness statement to challenge another witness, concluding the Plaintiff was entitled to rely on Mr Cooke’s statement to challenge the Defendant’s witness, despite general rules against impugning one’s own witness.

Finally, the court considered contributory negligence, affirming the trial judge’s 33% apportionment against the Plaintiff, finding no exceptional grounds to alter it.

Holding and Implications

The court ALLOWED THE APPEAL and entered judgment for the Plaintiff for damages to be assessed, subject to a 33% deduction for contributory negligence.

The direct effect is that the Defendant failed to establish the statutory defence under section 58 of the Highways Act 1980 due to insufficient inspection and maintenance of the highway verge. The decision clarifies that cycling on a grass verge adjacent to a footpath can constitute ordinary use of the highway attracting statutory duties. The court’s findings on evidential principles regarding witness statements may influence future civil procedure in similar contexts. No broader precedent on common law duty was established, as the court did not reach that issue given the statutory ruling.