Claims involving defective manhole covers – who can be sued?

May 30, 2022

Chris Richards

Introduction

Last year, I represented a Claimant who had suffered a nasty fall after stepping onto a defective manhole cover. As the Claimant stepped onto the metalwork, it gave way and the Claimant fell into the space beneath. The Claimant suffered a serious fracture to her ankle. Happily, the claim was successful and we recovered substantial compensation from the local water company.

The question which often arises in cases involving defective metalwork is who should be sued. There are many different organisations that might be responsible for a particular piece of metalwork.

It is crucial to know who to proceed against. If you are the Claimant, you can identify the correct Defendant, formulate the claim properly, and settle the claim early. If you are for the Defendant, you can identify worthwhile claims and settle them early (as well as apply to strike out any claims which have been brought against you in error).

This article will hopefully shed some light on the parties who can be responsible for accidents involving defective metalwork.

Disclaimer

This article is intended as a general introduction to the topic. The article does not constitute legal advice to be relied upon. Every case turns on its own facts. The author would always be happy to field queries from solicitors over email (richards@exchangechambers.co.uk).

What kinds of metalwork are we talking about?

This article focuses on the sort of metalwork which you might find on a highway or in private premises. There are a few different kinds of metalwork to consider:

(1) Manhole covers

Manhole covers are removable lids which are placed over a man-made hole. The manhole, as per the name, is usually wide enough for a man to enter. Manholes are usually associated with subsurface drainage. Manhole covers allow access to foul water drainage systems, surface water drainage systems, and other underground chambers. Manhole covers are usually circular and made from metal but can be made from other materials (e.g. concrete).

(2) Access covers

You will sometimes see reference to ‘access covers’ as being different to ‘manhole covers’ but there is clearly a lot of overlap. Access covers and manhole covers both allow access to an area underneath. However, access covers are usually associated with electrical wiring, cabling, signals, plumbing, heating and ventilation rather than drainage. Access covers are also more likely to be square or rectangular-shaped.

(3) Grates (gully gratings, kerb drainage units etc.)

These are usually square-shaped, made of metal, and have a grill on the top. These allow surface drainage to move into the drainage systems beneath.

(4) Surface boxes / fire hydrant covers

These are usually square-shaped, made of metal, and have a solid lid on top. Once the lid is removed, the water supply or stop tap underneath can be accessed.

What sort of questions should you be asking yourself?

When you are thinking about a particular piece of metalwork, there are some questions which should always be at the front of your mind:

• Is the metalwork on a public highway?
• If so, is the metalwork on a public highway which is maintainable at public expense?
• Who owns or occupies the area where the metalwork is present?
• What sort of metalwork is it?
• Is the metalwork connected with sewerage, drainage, or something else?
• What is wrong with it? Has it broken, or was it not installed properly in the first place?

The answers to these questions will help you navigate some of the issues discussed below.

Can you sue the company who installed the metalwork?

The answer here is ‘yes and no’.

If the accident happens because the metalwork was improperly installed, or there was something inherently wrong with the metalwork, you may be able to argue that those who installed the metalwork created a dangerous situation. This may allow you to pursue them in the tort of negligence.

An example from case law is the case of Pitman v Southern Electricity Board [1978] 3 All E.R. 901. Here, the electricity board had installed a metal plate which was projecting an eighth of an inch from the surface of a road. The Court of Appeal agreed that the installation of the metal plate in this way presented a danger to those using the road and was negligent.

My case involved a manhole cover which had been installed without the frame which would normally support it underneath. The manhole cover was prone to collapse and was essentially an accident waiting to happen. It would have been quite straightforward to bring a claim against the company who had installed the manhole cover.

However, it will often be very difficult to prove that a particular company installed the metalwork. This may have been done a very long time ago. You will be looking for records which will probably not exist any more.

It may also be difficult to prove that there was something inherently wrong with the metalwork when it was first installed. The suggestion may be made that the damage had accumulated over time and was not due to an inherent defect.

The company who installed the metalwork are therefore not a particularly attractive option if you are the one bringing the claim.

Can you sue the Highways Authority?

If the metalwork is part of a public highway which is maintainable at public expense, there will be a highways authority who are under a duty pursuant to section 41 of the Highways Act 1980 to maintain the highway.

The duty to maintain the highway in practical terms means that the highways authority must maintain the surface of the highway.

If the metalwork forms part of the surface of the highway, and the metalwork is in a dangerous condition, the Claimant will have a good argument that the highways authority are in breach of duty. There are a number of cases where this has essentially been taken for granted:

• Atkins v Ealing LBC [2006] EWHC 2515 – a tilting manhole cover was accepted by both parties to be a section 41 breach;
• Lawrence v Kent County Council [2012] EWCA Civ 493 – a protruding manhole cover was accepted to be potentially a section 41 breach;
• Da Silva v Transport for London [2021] 4 WLUK 316 – a manhole cover had become worn away and slippery, section 41 breach established.

The highways authority will be an attractive defendant given that they will be solvent and readily able to meet any successful claim.

However, the highways authority will have available to them the statutory defence under section 58 of the Highways Act 1980. This reads as follows:

“In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”

It can be seen that the highways authority only has to take reasonable care in order to avoid liability. This is where Claimants often fall down.

The first problem for Claimants is that metalwork can become defective very quickly. Highways authorities almost always have a system of periodic inspection for the highways under their control. The road may be inspected every week, every month, or even every year. This allows the highways authorities to detect problems which arise slowly (e.g. a pothole gradually wearing away). If the metalwork breaks suddenly, the highways authority may not know about it until the next inspection. The highways authority could make it so that all their highways were inspected around the clock, to make sure that any broken metalwork was picked up quickly, but few Judges are going to see this as being a reasonable thing to do.

The second problem for Claimants is that problems with metalwork may not be visible on a purely visual inspection. The missing frame in my case would only have been discovered if someone sufficiently knowledgable had taken up the cover, and looked underneath. A system of inspection which involves the physical inspection of every piece of metalwork on every highway is going to be very expensive and Judges will be wary of holding highway authorities to an impossible standard.

The question of whether it would be reasonable for the highways authority to carry out a physical inspection of the metalwork in their area is very fact-specific. We know that the highways authority has the burden of establishing the statutory defence. The highways authority will need to prove that physical inspections were something which they were not reasonably able to do. This may involve the highways authority showing how much effort it would take to detect problems with metalwork, how much this would have cost, the effect on their budget, and so on. There are some first-instance cases where this approach has been successful:

• Waters v Rhondda Cynon Taf CBC [2009] 3 WLUK 103
• Berry v (1) Vale of Glamorgan Council & (2) Welsh Water [2018] 4 WLUK 623

However, there is at least one other case where the highway authority was unsuccessful. The High Court found in the case of Atkins v Ealing LBC [2006] EWHC 2515 that the conclusion of the lower court that physical inspections should have been carried out was not something they felt able to interfere with. I note that the evidence adduced on behalf of the highways authority appears to have been extremely weak:

“[…] The Defendant had no system at all for checking whether manhole covers were secure and not liable to tilt if stood on. There was no evidence adduced by the Defendant, in an attempt to discharge the burden of proof which lay upon it, to prove that loose or tilting manhole covers were so rare that it was unreasonable to expect highway authorities to have a system of inspection designed to check whether manhole covers were secure and not liable to tilt if stood on. Counsel for the Defendant, at the end of his reply, submitted that in the absence of evidence that people fell through manhole covers frequently the Judge’s conclusion that manholes covers should be inspected was wrong. In my judgment this submission is mistaken because the frequency of a particular type of accident is one of the circumstances of the case on which the Defendant, if he wishes to rely upon it to say that he has taken such care as is reasonable, has the burden of proof.” [para 16, per Teare J]

The highways authority might be the target – but they are frequently not, and there are two other possibilities to consider.

Can you sue the occupier?

If the metalwork is on private property, the Claimant may be able to being a claim against the occupier of the property. The occupier of the property will have a duty to take reasonable care for the safety of their visitors pursuant to section 2 of the Occupiers’ Liability Act 1957. Even if the defective metalwork belongs to a utility company, the occupier will still have a duty to warn visitors about any dangers and to take reasonable steps to remedy them. The occupier may also have a duty with regard to trespassers pursuant to section 1(3) of the Occupiers’ Liability Act 1984 but breach of this duty is more difficult to establish.

One complication is that if the metalwork forms part of the surface of a public highway, and the public highway is on the private property, if the occupier has not created the danger themselves but the metalwork has simply deteriorated over time, it is highly unlikely that there will be any liability on the part of the occupier (see McGeown v Northern Ireland Housing Executive [1995] 1 AC 233). The metalwork forming part of a public highway would also preclude a claim under the Occupiers’ Liability Act 1984 (see section 1(7) of the Act).

Can you sue the landlord?

If the metalwork is on private property, and the premises are being rented out, there will probably be a tenant (or licensee) who is occupying the property. It may be possible to bring a claim against them as an occupier. However, it may also be possible to bring a claim separately against the landlord.

A claim against the landlord in common law negligence will usually fail. The landlord will generally have no duty of care to visitors or trespassers at common law where harm is caused by the dilapidation of the property (see Cavalier v Pope [1906] AC 428). This is true even where the landlord is aware that the property is dilapidated. There are two exceptions to this rule:

• The landlord may owe a duty of care where they were responsible for the design or construction of the premises (Rimmer v Liverpool City Council [1985] Q.B. 1, C.A). This is only usually going to be relevant in cases involving defective metalwork where the landlord has been responsible for the design or construction of the metalwork.
• The landlord may owe a duty of care where the landlord has created the dangerous situation themselves (Drysdale v Hedges [2012] EWHC 4131). This may be relevant where the landlord has constructed the metalwork inappropriately or has otherwise damaged it during maintenance.

A claim against the landlord under the Occupiers’ Liability Act 1957 will usually fail given that the landlord has usually surrendered the occupancy of the premises to their tenant (Wheat v E Lacon & Co Ltd [1966] AC 552). However, there may be cases where the landlord has retained occupancy of certain parts of the premises. If the defective metalwork is on an area of the premises which is shared between the tenants, and which is still under the control of the landlord, the Occupiers’ Liability Act 1957 may still have some relevance.

The main avenue when bringing claims against landlords is the Defective Premises Act 1972. This is a complicated piece of legislation and will be the subject of a separate article. However, there are generally two parts of the Act which may assist:

• Section 4(1) provides the main duty of care under the Act. This section states that where premises have been let under a tenancy which includes an obligation to the tenant for the maintenance or repair of the premises, the landlord owes a duty to all those people who may be affected by defects with the premises (whether the tenants, their household, or their visitors) a duty to take reasonable care to make sure that they are safe from personal injury or property damage caused by a ‘relevant defect’. A ‘relevant defect’ is essentially a defect which the landlord would be required to repair under the terms of the contract. The emphasis is on ‘repair’ and not simply improving the premises or making them safer.
• Section 4(4) extends the duty of care in Section 4(1) to cover those defects where the landlord has a right to enter the property to remedy them. If the landlord is not expressly required under the terms of the contract to repair defective metalwork, for example, but where the contract gives the landlord the right to enter the property to repair defective metalwork, it is likely that the defective metalwork will be deemed to be a ‘relevant defect’ for the purposes of the Act.

Can you sue the utilities company?

The utilities company (or more likely their predecessors) may be the ones who installed the metalwork. I have mentioned that the identity of the organisation who first installed the metalwork may be difficult to prove. However, where the metalwork has worn away over time, the utilities companies may have a separate responsibility to keep the metalwork in a good state of repair. This will depend not only on the nature of the metalwork but also its location.

(A) Metalwork on the public highway

The metalwork we have been discussing (manhole covers, grates and so on) is usually found on the public highway. The companies who are legally allowed to undertake work on the public highway are known as statutory undertakers. Utilities companies are usually statutory undertakers. Statutory undertakers are usually those companies who deal with the supply of electricity, gas, telecommunications, and water.

The first question is whether statutory undertakers are subject to any statutory duties to maintain metalwork which may be actionable.

The work being done by statutory undertakers is governed by the street works sections of the New Roads and Street Works Act 1991. Section 81 of the Act establishes a duty need for the undertaker to maintain their ‘apparatus’:

81.— Duty to maintain apparatus.

(1)  An undertaker having apparatus in the street shall secure that the apparatus is maintained to the reasonable satisfaction of—

(a)  the street authority, as regards the safety and convenience of persons using the street (having regard, in particular, to the needs of people with a disability), the structure of the street and the integrity of apparatus of the authority in the street, and

(b)  any other relevant authority, as regards any land, structure or apparatus of theirs;

 and he shall afford reasonable facilities to each such authority for ascertaining whether it is so maintained.

Section 89(3) makes clear that ‘apparatus’ includes “a sewer, drain or tunnel”. I am taking it as read that this would include any metalwork on top.

It seems highly unlikely that this section will be deemed to create an actionable statutory duty. This is the view taken by the authors of the Encyclopaedia of Highway Law and Practice (see section 3-2019).

The authors note that the Court of Appeal in the case of Keating v Elwan [1968] 1 W.L.R. 722 declined to find that there was an actionable duty in respect of a similar provision, section 8(1)(a) of the Public Utilities Street Works Act 1950, which provides that undertakers shall provide adequate fencing and lighting. Readers will also be familiar with the later case of Gorringe v Calderdale MBC [2004] 1 WLR 1057 which deals with statutory duties in general.

The next question is whether there is any wider common law duty which can be relied upon. The answer to this question is a guarded ‘yes’.

The authors of Charlesworth & Percy on Negligence (14th edition) make clear that in their view there is a common law duty to maintain structures laid in the highway. The “[d]uty is to take reasonable care to install and to maintain the structures, so that they are not dangerous to persons who use the highway with reasonable care” [11-37]. The authors rely upon a number of (somewhat antiquated) cases in support of this proposition:

• Chapman v Fylde Waterworks Co [1894] 2 Q.B. 599: a water company was held liable where a person tripped over the lid of a piece of metalwork which was out of repair;
• Wells v Metropolitan Water Board (1937) 54 T.L.R. 104: a utility company was held liable where a lid had been installed which was easily tampered with, with the utility company being aware that this happened from time to time, and where a person was injured after tripping on a lid which had been tampered with.
• White v Hindley Local Board (1875) L.R. 10 Q.B. 219: a sanitary authority was liable for a person injured by a defective sewer grid (with the notes suggesting that this was due to “nonfeasance”, i.e. a failure to maintain).

The authors write that in the first case (and potentially the others) “liability depended on the statutory duty to maintain”. It is not clear what effect the authors suggest that this has.

There are some more recent cases which suggest that there is a wider common law duty:

• Reid v British Telecommunications PLC [1987] 6 WLUK 325: the Claimant brought a claim against a telecommunications company and the court appears to have taken it as read that there was a common-law duty of care.
• Berry v (1) Vale of Glamorgan Council & (2) Welsh Water [2018] 4 WLUK 623: the Claimant brought a claim against the water company (as D2) and again no point appears to have been taken about the existence of a common-law duty of care.

The case of Reid is also notable in that the Court of Appeal held that where a statutory undertaker relies on inspections carried out by a highways authority they will be deemed to be fixed with the knowledge which they would have obtained if they had carried out those inspections.

Interestingly, there is a truly ancient case called Moore v Lambeth Waterworks Co (1886) 17 Q.B.D. 462 which suggests that where a statutory undertaker installs a piece of metalwork, and the surrounding highway wears away to the point where the metalwork is exposed, there will be no liability for the statutory undertaker. The case has been cited with approval and despite its tremendous age probably still represents good law.

The existence of a common-law duty to maintain structures laid in the highway would still require the Claimant to identify the particular statutory undertaker who was responsible for maintaining the metalwork. I doubt it would be necessary to prove beyond doubt who had installed it in the first place. It may be enough to identify (for example) that the metalwork is for the supply of water and hence that the water undertaker would be responsible. There are circumstances where the ownership of the metalwork has more recently been transferred to a particular statutory undertaker and this will be discussed below.

Even if the Claimant is able to show that there was a duty of care, the utilities company will be able to argue that their actions did not constitute a breach of duty. The utilities company will have the chance to argue (in the same way as the highways authority would) that they were taking reasonable care for the metalwork for which they were responsible. They may have had a system of periodic inspection (i.e. sending people out to check the metalwork). They may have had a reactive system of inspection (i.e. waiting for reports to come in about defects). If there is no system in place at all the utilities company may well be in difficulty.

(B) Metalwork not on a public highway 

I have been dealing so far with metalwork which is present on the public highway. However, there may be metalwork which is not on a highway. This metalwork will often be on private property.

It will be very rare that a claim will be contemplated against a utility company arising out of an accident involving metalwork on private property. The reason for this is that the private property will almost always have an occupier. The occupier of the property will have a duty to take reasonable care for the safety of their visitors pursuant to section 2 of the Occupiers’ Liability Act 1957. The person bringing the claim will usually be deemed to be a visitor. If the claim against the utility company is going to be successful, the claim against the occupier would usually be successful as well. The occupier will likely be solvent and able to meet a claim. The claimant can simply pursue the occupier and ignore the utility company.

However, there may be times when it may be necessary to contemplate a claim against a utility company. The occupier of the premises (as an example) may not be solvent and able to meet the claim.

There is again some legislation which could give rise to an actionable statutory duty. There is section 94 of the Water Industry Act 1991, which deals with sewerage:

94.— General duty to provide sewerage system.

(1)  It shall be the duty of every sewerage undertaker—

(a)   to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers [and any lateral drains which belong to or vest in the undertaker] as to ensure that that area is and continues to be effectually drained […]

The reference to the sewerage undertaker needing to ‘maintain’ the sewers might assist any Claimant who had been injured by sewerage which was out of repair. However, there is no actionable statutory duty for breaches of duties under the Water Industry Act 1991 (see Bowden v South West Water Services Ltd [1997] 12 WLUK 318).

Section 94(3) of the Act includes a mechanism for the relevant regulator to enforce compliance by the statutory undertaker. The House of Lords made clear in the case of Marcic v Thames Water Utilities Ltd [2004] AC 42 that common law claims could not be brought where they conflicted with the statutory scheme. However, the High Court in the case of Dobson & Ors v Thames Water Utilities Ltd & Anor [2007] EWHC 2021 took the view that claims regarding cleaning and maintenance of the existing sewers could still potentially be brought in common law negligence:

“If there is fault in the form of negligence and if there is a different cause of action which is not inconsistent and does not conflict then I consider there is nothing to preclude a claim being made on that basis. Policy matters are likely to lead to such inconsistency and conflict whilst operational matters are less likely to do so. It must be a question of fact and degree. Where an allegation is tantamount to requiring major plant renewal that will fall on one side of the line whilst an allegation that a filter should be cleaned will lie on the other side. The mere fact that the effect of the cause of action is to enforce the duty in s. 94(1) does not in itself preclude the cause of action.” [para 143, per Ramsey J]

We are again left thinking about whether there is an actionable common-law duty of care. This is lamentably unclear. I am not aware of any authority which assists. There is a hint in the case of Dobson above that claims regarding inadequate maintenance of sewers could be brought in common law negligence but this is mentioned in passing and I would be wary of placing too much weight on it.

I am aware of one case at first instance where a Circuit Judge appears to have found that there was an actionable duty of care with regard to metalwork on private property (see https://www.ropewalk.co.uk/uploads/pdfs/PG-The-Liability-of-Water-Utility-Companies-in-Tort-for-Drains-Owned-on-Private-Land.pdf, which is an article written by the Claimant’s barrister). However, the case appears to have involved a claimant who had been walking on a footpath and I suspect that the accident may have taken place on a public highway. The text of the judgment is not available and so there is some uncertainty about the rationale for the decision.

The Claimant will be in a stronger position if they can show that the utility company was responsible for the maintenance of the metalwork. This may be straightforward if the case involved private sewers or lateral drains. The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 transferred responsibility for private sewers and private lateral drains to the relevant sewerage undertaker. The implementation of the Regulations is very complex and it may be sensible to consult guidance documents to have a firm view on whether a particular piece of drainage had been transferred (e.g. the ‘Guide to Transfer of Private Sewers Regulations 2011’ produced by Water UK).

The real question may be whether the court is willing to impose a duty of care under common law. The conditions for the establishment of a duty of care are set out in the famous authority of Caparo Industries pIc v Dickman [1990] 2 AC 605. The Claimant would have to show the following:

• That the harm is reasonably foreseeable as a result of the Defendant’s conduct;
• That the parties’ relationship is sufficiently proximate for liability to be imposed; and
• That it is fair, just and reasonable to impose liability.

However, this is no silver bullet. The courts will be very wary of expanding the scope of the common-law duty of care in circumstances where floodgates may be opened.

I suspect that the decision over whether to impose a duty of care would depend heavily on the facts of the case. The court may find it comparatively easy to impose a duty of care where there is metalwork covering something extremely dangerous, where the utility company would normally be maintaining the metalwork, and where they have forgotten to do so and hence caused the accident. The court may find it much more difficult to impose a duty of care where the situation is more ordinary.

Conclusion

I hope this article has been helpful.