Karpasitis v Hertfordshire City Council [2025] EWCA Civ 788 – Duty of Care of Highway Authorities for Grass Verges and the Evidential Issues in a Section 58 Defence
Background
In April 2020, while cycling along a familiar path, the Claimant, Mr Karpasitis, attempted to overtake a jogger and, in doing so, rode onto the grass verge and fell due to a hidden hole. This resulted in complex vertebral injuries, ending his career as a social worker. A claim was brought against Hertfordshire County Council under section 41 of the Highways Act 1980, and for negligence under common law.
The council sought to rely on a section 58 defence, by submitting that a walk-through inspection of the path had been conducted two months earlier by Mr Cooke, their inspector. Mr Cooke also asserted that if he had seen the hole in the verge, he would have recorded it as a defect requiring urgent action. However, the GPS data disclosed for Mr Cooke’s vehicle showed that his vehicle stopped once for three minutes on the inspection date. Close to trial, the Council served a Civil Evidence Act Notice in relation to his evidence; Mr Cooke did not attend the trial for no better reason than the fact that he had retired.
During the trial, a witness called by the Council provided evidence that Mr Cooke would have flagged the defect as not requiring urgent action, which was the opposite of Mr Cooke’s evidence. The Council strategically withdrew their application to rely upon Mr Cooke’s evidence. The Claimant was required to put Mr Cooke’s statement into evidence, to be able to put relevant sections of his statement to the Council’s witness.
The first instance judge found that the hole in the verge put the highway into a state of disrepair for the purposes of the Highway Act 1980, s 41, and that it was dangerous. However, the judge went on to find that the Council had established the statutory defence under Section 58 and dismissed the claim.
Court of Appeal Judgment
- Section 41 Duty can extend to grass verges.
The Court held that while disrepair is fact-sensitive, a large hole in the grass verge could constitute disrepair under section 41, especially when cyclists or pedestrians foreseeably use the verge. In this case, the footpath was too narrow to allow cyclists to pass each other or pedestrians safely without encroaching onto the grass verge. The Court held that, although a grass verge need not be maintained to the same exact standard as a paved carriageway, it confirmed that the defect in the dimensions established in this case could cause injury to a cyclist and that the defect was dangerous to ordinary traffic, thereby representing disrepair of the highway.
- Section 58 Defence and treatment of evidence of Mr Cooke.
At the heart of the appeal was an important question about the Council’s inspection evidence, in particular about the GPS data that revealed that the inspector’s vehicle stopped for only three minutes, not long enough for a walked inspection. The court at first instance had refused to give weight by ruling it impermissible to challenge a party’s own statement partially. The vital question in the appeal, therefore, arose whether the claimant, by putting passages from a witness statement to another factual witness in cross-examination, was bound to accept the whole of the statement.
The Court of Appeal acknowledged the general rule is that a party cannot put in part of a witness statement served by an opposing party since that would contradict the terms of CPR 32.5(5), as noted in Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] 1 WLR 3529. The Court also accepted that the general evidential rule is that a party cannot impugn the truthfulness of its own witness. The party may call other evidence that may provide a different or inconsistent picture; it generally cannot go further and seek to show that the witness cannot be believed under oath. The question, therefore, that needed to be considered was whether the only way the claimant could challenge the factual evidence of Mr Cooke would be by putting the whole of his witness statement in evidence.
The Court held that the claimant should have been allowed to put to the factual witness that his evidence about what Mr Cooke would have done if the hole in the grass verge had been present was misleading in light of Mr Cooke’s statement. The Court applied The Filiatra Legacy [1991] 2 Lloyd’s Rep 337, and found that the claimant was entitled to submit to the court that Mr Cooke’s written evidence, to the extent that he claimed to have carried out a walked inspection two months before the accident, was inconsistent with the contemporaneous evidence of the GPS tracking document; and, in the absence of any explanation from Mr Cooke, should be rejected.
The Court of Appeal further concluded that once the decision was made in this case to admit Mr Cooke’s statement into evidence, the judge at first instance was not required to treat its entire contents at face value. That part of Mr Cooke’s witness statement which asserted that he had carried out a walked inspection of the relevant part of the footway and verge two months before the accident should have been treated by the judge as manifestly incredible (as per Newey LJ in Kireeva v Bedzhamedov [2022] EWCA Civ 35 at para [34]) as it flatly contradicted the GPS tracking evidence and should be given no weight. The Court of Appeal concluded that without this evidence from Mr Cooke, the whole basis of the Council’s defence under section 58 unravelled. The Court thus determined that the judge ought to have held that the Council had failed to establish their statutory defence to the claim based on s 41.
Conclusion
The law, adopting a pragmatic user-centred approach, confirmed that the substantive duty under section 41 extends to grass verges that road users foreseeably use. Procedurally, the Court of Appeal, in reinforcing the need for fairness, has refined the approach that parties can take when challenging specific portions of witness statements, particularly where independent documents contradict the statement, and cautioned against the rigid application of CPR 32.5.
By Palak Sikri
