Mills v Barnsley Borough Council: CA 1992

The court considered the extent of defect in a highway needed to found a claim that it was dangerous. It emphasised that the duty must not be made too high, balancing the public need against the private interest.
Steyn LJ said: ‘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.’
Two findings of fact could not be sustained. He continued: ‘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.’


Steyn LJ


[1992] PIQR 291


Highways Act 1980 41 58(1)


England and Wales

Cited by:

CitedNeina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
CitedLawrence v Kent County Council CA 26-Apr-2012
. .
CitedJones v Rhondda Cynon Taff County Borough Council CA 15-Jul-2008
The claimant, a fireman, sought damages for injuries suffered when he was injured answering a call out. He fell into a depressed area by the road side as he was pulling away a burning wooden pallet.
Held: The appeal was dismissed. The court . .
CitedRance v Essex County Council CA 21-Feb-1997
Appeal against refusal of claim against highway authority. The appellant was injured when her car crashed. A high volume of heavy goods vehicles had been using a local road, damaging the road and verges. Though the road was wide enough for her car . .
CitedGriffiths v Gwynedd County Council CA 22-Oct-2015
The claimant cyclist was injured on being thrown from his bicycle going downhill, by a defect in the road. He appealed against a decision that the defect was not a danger. . .
CitedWalsh v The Council of The Borough of Kirklees QBD 5-Mar-2019
No demonstrable error of assessment – no appeal
The claimant cyclist appealed from refusal of damages after being thrown from her bike on hitting a pothole in the road. The court had found it unproven that the pothole was dangerous.
Held: The evidence had been difficult. The court noted . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Road Traffic

Updated: 01 May 2022; Ref: scu.240054