Cenet (nee McGlennon) v Wirral Metropolitan Borough Council

Cenet (nee McGlennon) v Wirral Metropolitan Borough Council

The trial judge erred by applying pavement standards to a carriageway defect and placing undue emphasis on pedestrian use at the crossing point. The defect, being less than 40mm and in the carriageway, was not dangerous within the meaning of Section 41 of the Highways Act 1980. The judge's finding of dangerousness was unsustainable, and the appeal was allowed.

Parties
Claimant/respondent: Jeanette Cenet (nee McGlennon); Defendant/applicant: Wirral Metropolitan Borough Council
Jurisdiction
England and Wales
Judgment Date
26 June 2008
Procedural Posture
Civil Appeal / Appeal From County Court to High Court; Application for Permission to Appeal and Substantive Appeal
Outcome
Appeal allowed
Legal Topics
Highway Maintenance Liability, Contributory Negligence, Statutory Duty Under Highways Act 1980, Dangerousness of Highway Defects, Credibility of Witnesses, Appeal Standards
Tort Law Civil Procedure Local Government Law Highway Maintenance Liability Contributory Negligence Statutory Duty Under Highways Act 1980 Dangerousness of Highway Defects Credibility of Witnesses +1 more

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Parties

Jeanette Cenet (nee McGlennon)

Claimant/respondent

Wirral Metropolitan Borough Council

Defendant/applicant

Procedural Posture

Civil Appeal / Appeal From County Court to High Court; Application for Permission to Appeal and Substantive Appeal

Legal Issues

  1. 1 Whether the trial judge erred in finding the claimant proved the accident occurred as alleged
  2. 2 Whether the defect constituted a dangerous defect under Section 41 of the Highways Act 1980
  3. 3 Whether the defendant had a statutory defence under Section 58 of the Highways Act 1980

Ratio Decidendi

The trial judge erred by applying pavement standards to a carriageway defect and placing undue emphasis on pedestrian use at the crossing point. The defect, being less than 40mm and in the carriageway, was not dangerous within the meaning of Section 41 of the Highways Act 1980. The judge's finding of dangerousness was unsustainable, and the appeal was allowed.

Court Disposition

Appeal allowed

Orders

  • Permission to appeal granted
  • Judgment for the claimant set aside