O’Connor v Luton Borough Council

Last week the High Court handed down its decision in the case of O’Connor v Luton Borough Council [2021] EWHC 1691 (QB).

The Claimant (“C”) was a motorcyclist who sustained serious injuries in September 2016.  As she was leaving a petrol station, she lost control of her motorbike and accelerated across the road into the path of an oncoming car. She suffered significant injuries, including a head injury which left her with no recollection of the accident. Her case, based on evidence from a group of motorcyclists whom she had been aiming to join as she pulled out of the petrol station, was that the accident had been caused by the dangerous condition of the road. One of the motorcyclists asserted that as the claimant pulled out, the back wheel of her motorcycle dropped into a pothole in the road close to the kerb, causing the front wheel to rise up and propelling the motorcycle into the path of the car. A few days after the accident, the claimant’s children sent the highway authority photographs of the pothole. The highway authority immediately carried out temporary repairs, with more permanent repairs following in 2017 and 2018. From the photographs, the parties’ experts agreed that the pothole was about 200mm wide, 200-300mm long and 40-50mm deep.

The central issue was whether it was the pothole which caused the claimant to lose control of her motorcycle and, if it was, whether it rendered the highway dangerous to traffic.

The case came before Martin Spencer J for the trial of the issue of liability.  After four days of evidence, including evidence from accident reconstruction experts, motorcycle handling experts and highways engineers, the Court found that C had not ridden over the area of defective paving as suggested by some witnesses.

The Court went on to find that, even had C ridden over the pothole, the defect itself was not dangerous.  In coming to that conclusion Martin Spencer J made a number of helpful observations that defendants would do well to bear in mind when defending highways claims:

• The location of the defect is important. At §48 of the judgment the Court noted that: “… I take full account of the greater vulnerability of motorcyclists compared to motorcar users. However, motorcyclists have a greater choice as to which part of the road to use and it is relevant to my assessment that the defective part of the highway could easily be avoided by a motorcyclist exiting the garage. This is in contrast to, for example, a defect in the main part of a carriageway on a bend which a motorcyclist might encounter unexpectedly and when travelling at a speed which did not allow for the defect to be avoided. A motorcyclist exiting the garage would be travelling at a very low speed and would have ample opportunity to see the defect and avoid it. I am influenced by the fact that police officers experienced in the investigation of road accidents, in the belief that they might be investigating a fatality, examined the road and found nothing which, in their view, could account for the accident, thereby indicating that their experienced eyes did not regard the defects as dangerous.”

• A lack of other complaints about the road surface is something that should be taken into account: “I also take into account the lack of complaints or reports about these defects. In this regard, I consider apposite what was said by Mrs Justice Swift in Cenet v Wirral Metropolitan Borough Council [2008] EWHC 1407 (QB): “There was, however, evidence to support the view that it was not dangerous. Despite its presence in the carriageway for at least a period in excess of two years, no member of the public had complained about it. Nor had any accident, other than that of the claimant, been reported as having occurred there. The photographs showed the type of minor defect that is not unusually seen in the carriageway of a road. It is clearly distinguishable from the adjoining setts and could readily be avoided by a person paying proper attention. I have in mind the observations made by Steyn LJ and Dillon LJ in Mills. It does not seem to me that this defect, situated in the carriageway, and in the location that it was, can properly be regarded as “a real source of danger”. The risk it presented was of a low order and the cost of remedying all such defects in the carriageway would be wholly disproportionate.”

A copy of the judgment can be found here.

Ian Clarke represented the successful Defendant