Pot Luck on Britain's Roads

Potholes and personal injury claims are likely to become better acquaintances this year after the AA warned of a sharp rise in cracks and craters affecting British roads following a spell of unseasonably cold weather. The AA estimates that there are currently around 1.5 million potholes in the UK and that local authorities are ultimately to blame for them.

President of the AA, Edmund King, said: “we will all pay more through having to once again patch and mend and then pay out accident compensation rather than fixing the underlying poor condition of many of our roads”. However, the connection between roads in disrepair and successful personal injury claims is not as conclusive as many people might assume.

Negligence law requires that a breach of a duty of care causes some harm or injury to a person. In the case of road traffic accidents, the duty of care exists between all drivers, so it is often straightforward to establish negligence on the evidence of careless or reckless driving. Where the road itself causes the injury, however, matters become more convoluted for the victim as the highway authority is often able to rely on s.58 of the Highways Act 1980 (hereafter ‘the Act’), which provides a statutory defence against accident claims in certain circumstances.

In order to understand how s.58 of the Act can be used as a defence for the highway authority, which essentially refers to any public authority responsible for the road or pavement in question, it is first necessary to examine the statutory duty imposed on the authority. Section 41(1) of the Act requires the highway authority to maintain a highway that is “maintainable at the public expense”, which includes highways, trunk roads, special roads, footpaths and bridleways. Section 41(1A) of the Act also provides that the highway authority must ensure, so far as is reasonably practicable, that safe passage along the highway is not endangered by snow or ice.

However, s.58(1) of the Act provides that “in an action against a highway authority in respect of damage resulting from their failure to maintain a highway… it is a defence… 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”. Various subsections identify areas the court should take into consideration, such as the character of the highway, the standard of maintenance appropriate for it, the state of repair in which a reasonable person would have expected to find it, whether the authority could reasonably have been expected to know that its condition would cause danger and whether warning notices had been displayed.

The case of Harrison v Derby County Council (2004) illustrates perfectly how s.58 of the Act can be used by local authorities to escape liability where negligence would otherwise be established. Although the appellant highway authority conceded that the respondent’s injury occurred as a result of a defect in the highway (footway), which had not been maintained or repaired and was a danger to pedestrians, it successfully argued that its competent system of inspections were carried out at appropriate intervals.

The Court of Appeal held that it would be unreasonable and disproportionate to introduce a different inspection regime for areas of the highway where depressions or potholes occur only rarely; therefore, the authority was ruled to have taken such care in all the circumstances as had been reasonably required to ensure the highway’s safety.

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