Watch out for the potholes

Because it now appears that the local Highways can now use a lack of money as a statutory defence not to repair the roads when the standard of the road surface falls into disrepair.


A highways authority which had deviated from the national code of practice for the maintenance of highways because of budgetary considerations could not rely on a defence under the Highways Act 1980 s.58 to a claim for damages caused by the authority’s failure to maintain the highway

The appellant cyclist (W) appealed against the dismissal of her claim for damages against the respondent highways authority (Y).

W had been cycling along Whitby Drive but had fallen off her bicycle after her front wheel hit a pothole. She suffered a fractured chin and other injuries.

Under Y’s highway maintenance scheme, Whitby Drive was in a category of highways inspected once a year. However, under the national code of practice for the maintenance of highways, it potentially fell within a category where the recommended inspection frequency was three months. Y stated that it had adopted longer inspection periods because of budgetary constraints.

The judge at first instance found that Y’s maintenance scheme was insufficient, and Y could not rely upon a defence under the Highways Act 1980 s.58. On appeal, a circuit judge concluded that insufficient account had been taken of the highway authority’s financial considerations, and the s.58 defence succeeded.

W submitted that the s.58 defence was an objective test, and Y’s reliance on budgetary considerations did not meet that test. Y argued that W had to show that the pothole had arisen before the date that inspection was last due.

HELD: (1) The judge at first instance had been entitled to conclude that Whitby Drive was the sort of road for which annual inspection was inadequate, having regard to the guidance in the national code and the absence of any reason, other than financial, for departing from the national code (see para.32 of judgment). (2) The circuit judge’s approach to the s.58 defence was wrong.

Section 58 provided a defence where the authority had done what was “reasonably required to secure that the part of the highway to which the action related was not dangerous for traffic”.

That required an objective judgment based on risk.

Parliament had included manpower resources elsewhere in the Act as a matter to be taken into consideration where it was thought appropriate, but such considerations did not feature in s.58.

The various matters to which the court was required to have regard in s.58(2) were all objective matters going to the condition of the highway and what the authority could reasonably have been expected to know about it.

Section 58 was designed simply to afford a defence to a claim for damages brought against a highway authority which was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users, not an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing (paras 34-35). (3)

A claimant had to show that the danger was due to a failure to maintain in the sense explained by Lord Denning M.R. in Haydon v Kent CC [1978] Q.B. 343 but not more than that, Haydon considered. Y’s argument amounted to saying that s.58 made it incumbent upon a claimant in every case to prove that there was not merely a breach of the duty to maintain, but a negligent breach of the duty to maintain.

That proposition had already been rejected by the court in previous cases, Griffiths v Liverpool Corp [1967] 1 Q.B. 374, Goodes v East Sussex CC [2000] 1 W.L.R. 1356 and Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 W.L.R. 1057 applied.

Appeal allowed