Highway liability & grass verges, and evidential rules on abandoned witnesses statement evidence when put in evidence by the opposing party: Demetrios Karpasitis v Hertfordshire County Council [2025] EWCA Civ 788

Introduction

On 25 June 2025 the Court of Appeal (Bean, Coulson, and Andrews LJJ) handed down judgment in Demetrios Karpasitis v Hertfordshire County Council [2025] EWCA Civ 788, allowing the appeal against the dismissal of a PI claim against the Respondent highway authority. The case raised interesting questions regarding the correct evidential approach to ‘manifestly incredible’ factual evidence.

 

The facts

On 22 April 2020, Mr Karpasitis was riding his bike on a familiar path when he fell into a large hidden hole on a grass verge, causing him to be thrown from his bike. He sustained serious injuries including a complex fracture of the second vertebra. Hertfordshire County Council (‘Hertfordshire’) was the highway authority in respect of the grass verge.

At trial, Mr Karpasitis alleged that the hole was a dangerous defect constituting a disrepair within the meaning of s41 Highways Act 1980 (HA). Hertfordshire argued that it had a statutory defence under s58 HA, a special defence in which the highway authority can avoid liability if it takes reasonable care in all the circumstances to ensure the safety of the relevant part of the highway.

Mr Karpasitis further argued that there should have been signage indicating that the cycle track had ended: the absence of which was a breach of a common law duty of care.

 

Evidential issues

In order to establish the s58 defence, Hertfordshire relied upon a purported inspection of the area that had been carried out on 13 February, a little over two months prior to the accident.

Prior to service of witness statements, Hertfordshire disclosed GPS data from the inspector’s car on 13 February to Mr Karpasitis’ solicitors. This GPS data indicated that the inspector could not have performed a walking inspection of the relevant area, since his vehicle only stopped once on the relevant area for three minutes. Hertfordshire’s email disclosing this data stated that the inspector’s witness statement would address it. It did not. To the contrary, in his witness statement, the inspector said that he would have conducted a walked inspection of the relevant area in February and that he would not have missed or overlooked such an “obvious and glaring defect”. He was unwilling to attend court to give evidence and did not attend trial.

At trial, Hertfordshire withdrew their application to rely on the inspector’s evidence. Mr Karpasitis subsequently applied to put a relevant passage in the witness statement to Hertfordshire’s witness in cross-examination. Hertfordshire submitted that this was impermissible, arguing that if Mr Karpasitis wished to rely on the statement, he had to rely on all of it and not just part of it.  Mr Karpasitis then decided to put the inspector’s witness statement into evidence under CPR 32.5(5).

 

High Court decision

In the High Court, Vikram Sachdeva KC (sitting as a Deputy High Court Judge) dismissed Mr Karpasitis’ claim in its entirety.

Finding that the presence of the hole breached the s41 statutory duty to maintain the highway, it was nonetheless found that the statutory defence under s58 HA was made out.

Crucially, the judge found that the hole was not present at the time of the February inspection, as per the inspector’s witness statement and the record of the inspection that day. No weight was to be placed on the GPS data, because it is impermissible to challenge a party’s own statement partially. This is bound up with the general evidential rule that a party cannot impugn its own witness.

The common law claim was dismissed on the basis that there was no positive act giving rise to a duty of care.

Finally, even if had he upheld Mr Karpasitis’ claim, the judge indicated that he would have made a finding of one-third contributory negligence against him.

 

Appeal

Mr Karpasitis was granted permission to appeal by Males LJ on 28 February 2024. There were two grounds of appeal:

1. The judge erred in finding that the s58 HA defence was made out;
2. The judge erred in finding that there was no common law duty of care.

 

Court of Appeal decision

The Court of Appeal allowed the appeal. The relevant findings were as follows:

i) The judge was correct to conclude that the relevant part of the verge was in disrepair for the purposes of s41 HA. The defect was dangerous and called for repair (indeed, it called for urgent repair). It was also circumstantially relevant that a cyclist riding on the grass verge was plainly foreseeable, constituting an ordinary use of the highway [48-49].

ii) The key issue of the appeal was the question about whether, by putting passages from the inspector’s witness statement to factual witnesses in cross-examination, Mr Karpasitis was bound to accept the whole of the witness statement. The judge below had found that the answer to this question was that he would be so bound [51].

iii) The general rule is that a party cannot put in part of a witness statement served by an opposing party since that would contradict CPR 32.5(5) (as noted in Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] EWCA Civ 355; 1 WLR 3539). Additionally, a party cannot impugn the truthfulness of its own witness. However, Anonima Petroli Italiana S.p.A. And Neste Oy v. Marlucidez Armadora S.A. [1991] 2 Lloyd’s Rep 337 puts somewhat of a gloss on this: a party cannot impugn the evidence of its own witness unless that witness is hostile, although by reference to other evidence they might submit that he was mistaken [54-55].

iv) A correct reading of the above is that Mr Karpasitis should not have been obliged to have put-in the witness statement as evidence; however, once done so, the judge was not required to treat its entire contents at face value. The part of the witness statement in which it was asserted that a walked inspection of the relevant area had been carried out should have been treated as manifestly incredible and given no weight [59].

v) With the inspector’s evidence falling away, “the whole basis of the Council’s defence under s 58 unravels”. Hertfordshire therefore failed to establish the defence [60].

vi) In light of the above conclusion, the alternative claim in common law negligence fell away.

vii) The judge’s apportionment of primary liability and contributory negligence should be respected (unless in exceptional cases: see Jackson v Murray [2015] UKSC 5). Thus judgment was entered for Mr Karpasitis subject to a deduction of 33% contributory negligence [61-62].

 

Comment

The Court took a common-sense approach to the evidential rules. It was undoubtedly correct that, once Mr Karpasitis put in the witness statement, the judge was not obliged to accept its entire contents at face value.

The approach of the first instance judge left Mr Karpasitis in an invidious position of not being able to question Hertfordshire’s witness’s contradictory evidence without admitting evidence that would be inevitably fatal to their own case.

The Court of Appeal rightly reinforced that a sensible, pragmatic approach to fact-finding would take contemporaneous (especially impartial) documents as a starting point, before considering what witnesses have to say about them [51].

 

Analysis and review produced by Olivia Kirk, Pupil at Farrar’s Building. 

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