Visual inspections of stop tap covers owned by a statutory undertaker
GS v (1) Rhondda Cynon Taf County Borough Council (2) Welsh Water [2014]
We acted for Rhondda Cynon Taf County Borough Council in this case which dealt with the appropriateness of the Highway Authority’s visual, as opposed to a physical, inspection of stop tap covers owned by a statutory undertaker.
The Court found that a Highway Authority’s system of visually inspecting such covers was reasonable and it would have placed too high a burden to expect it to carry out physical inspections. It was also found that Welsh Water acted in reasonable reliance upon the Authority’s inspection regime and it had not been required to take further measures.
Facts and evidence
The Claimant brought a claim for personal injury following an alleged accident on 27 September2009. He alleged that he tripped on a raised stop tap cover owned by Welsh Water which was situated directly outside his home.
The Claimant called upon a number of witnesses to testify that the stop tap cover had been defective for at least a couple of months prior to his alleged accident, however, no one had reported it to either Defendant. The Claimant’s own evidence was that he had seen the cover stuck in an open position on a number of occasions during the 3 week period preceding his accident, but, on each occasion, had pushed it down to its closed position, such that, to the naked eye, it looked fine. A number of photographs showed the cover in this flat position.
The Authority’s case was that the footway was subject to monthly inspections on foot, but that each and every item of ironwork was not physically inspected, only subject to a visual inspection. If during such an inspection there appeared to be a defect within the cover, for example, if it was raised or slightly open, the Inspector would assess the cover and determine whether it was necessary to report it to the Authority’s New Roads and Streetworks Inspector, with the view of issuing a Section 81 Notice to the appropriate utility company.
The Authority’s Highways Manager provided a Statement confirming that he considered such a system, together with relying upon complaints made by members of the public, a reasonable one, since it was not practically feasible to physically inspect every item of ironwork on the highway.
The Authority confirmed in evidence that during the last pre-accident inspection, which took place 17 days before the Claimant’s fall, the Inspector did not identify any defect within the stop tap cover. Nor was the defect identified during the next 7 scheduled inspections.
Welsh Water confirmed that it had not received any complaints regarding the stop tap cover in question until it was notified of the Claimant’s claim, whereupon it renewed the cover.
Welsh Water also submitted that covers with corroded or eroded hinge pins were difficult to detect since the lid would still sit flush with the pavement like a normal lid. Any such defects could only be detected if the lid was pressed in a particular way, ie – if pressed down on the hinged end of the lid, which would cause it to flip up. However, if the lid was jammed in any way, even this test might fail to reveal any defect.
The issues and judgment
Despite robust cross-examination of the Claimant and his family members, the District Judge found that the accident occurred as alleged.
It was also accepted that a stop tap cover prone to flipping up was a breach of the Authority’s duty under section 41 of the Highways Act 1980.
The main issue of the case was whether the Authority (and, therefore, in effect, Welsh Water) could rely upon its special defence pursuant to section 58 of the 1980 Act.
The District Judge referred to the 2005 Code of Practice for Highway Maintenance, which required a footway of the same category to be inspected visually from a moving vehicle on a 6 monthly basis. The Authority, however, carried out monthly inspections on foot.
It may be useful to provide an extract from District Judge Carson’s Judgment which dealt with the burden placed on Local Authorities if required to carry out physical inspections:
"...If the matter is one where that had to be undertaken, such physical inspection would mean either a manual inspection, ie – getting it down to the pavement and inspecting that and others; alternatively, it would mean standing on it, perhaps with some trepidation (bearing in mind the size of some of the gratings and what might happen were something to go wrong), or using a stick or other form or prod or probe to check as to the nature of the covering and whether it was defective. That would include, as was the case in evidence here, having to try not just on one particular part of it with an inspection probe, but on different parts ….. That would put a very high burden on anyone so required or so considering undertaking that. Commitment of resources to that would be very, very substantial indeed. Of course, it would not relate just to stop tap covers of this particular sort ….. It does not take much examination to consider that such would be a very high duty if there are 80,000 covers of that sort spread throughout Wales, and other covers of other sorts. To inspect the entire country would be quite unreasonable and too high a burden on a Local Authority to inspect within their area…"
Comment
Whilst this is a County Court decision, we consider it to be a good result for Local Authorities facing claims which involve similar ssues and will, hopefully, prove to be useful and persuasive authority in other cases involving similar issues. It has been reported on both Westlaw and Lawtel legal research databases; therefore, the full approved transcript of the Judgment is readily available to both potential Claimants and Defendant Local Authorities alike.
