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Articles, News | Fri 24th Feb, 2023
1. This is the third short article in a series focusing on lesser-known case law which may assist in defending claims brought against highways authorities for failing to maintain the highway under section 41 of the Highways Act 1980 and its predecessors.
2. In this article, the focus moves from section 41 to the statutory defence in Section 58. It is worth repeating the content of that provision in full:
(1) 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.
(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—
(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.
3. Plainly, section 58 reverses the burden of proof, and requires the authority to establish that it has taken reasonable care, not in relation to its highway network as a whole, but in respect of the section of highway on which the accident occurred. However, subsection (2) also directs the court specifically to have regard to a number of issues in answering this overarching question. Does it follow that unless the Defendant adduces evidence on each of these issues, it cannot discharge the statutory defence?
4. This was the issue which came before the Court of Appeal in Williams v Knowsley Borough Council (1986) Lexis 3388. The Claimant tripped on the missing corner of a paving stone in Kirkby, Merseyside. The judge accepted that the defect rendered the highway dangerous and the case turned on whether the Defendant could establish the statutory defence.
5. The District judge at first instance found that the system of inspection overall was inadequately implemented, since there was no evidence of any regular, annual inspections, in accordance with the council’s policy. However, there had been a single inspection 7 weeks prior to the accident (the one before this was 17 months earlier). The Court found that this single inspection, carried out effectively by chance, had been properly performed and that, on balance, the defect had not been present. On that basis, the court found that the statutory defence was made out. This finding was upheld by the Circuit Judge.
6. On appeal to the Court of Appeal, the Claimant contended that it could not be right that the Defendant could be ‘let off the hook’ by a single, chance inspection. Having regard to the criteria that the court was required to consider under s.58(2), the Claimant argued that the overall system of inspection was an essential element of the Defence, and on the evidence it was clear that no reasonable care had been exercised whatsoever.
7. The court of appeal rejected these submissions (per Otton LJ):
“In my judgment, the correct reading of subsection (2) is to equate it as my Lord Hirst LJ did in argument, with a plea in negligence with a burden of proof reversed and imposed upon the Defendant. In other words, for the Defendants to prove that they were not negligent. It is true that there are five sub-paragraphs to subsection (2) but it is essential not to read those paragraphs in any sense as a series of hurdles over which the Defendant must pass before securing and providing the statutory excuse or defence.
It is clear from the language of the Act that the Court must have regard to such circumstances as set out in the sub-paragraphs. In other words, a frequent system of inspection is not, as counsel for the plaintiff contends, a condition precedent to raising or pursuing the defence. The failure to inspect annually did not preclude the defendant from proving that they did, in fact, inspect before the accident and that the seven weeks interval was a reasonable interval. In other words, the fact that the system of inspection was unreasonable or inadequate did not preclude the defendant from raising the statutory defence and relying upon the evidence of the last inspection”
8. The clear distinction being drawn by the Court of Appeal is between those matters to which the Court is required to have regard under s.58(2) – if relevant – and what the Defendant is actually required to prove, as a matter of law, in order to demonstrate that it was not negligent. The two are not the same.
9. It is implicit in this analysis that the statutory defence contains some causal consideration, namely whether or not the accident was the result of any act or omission by the Defendant. On the facts of Williams, the failure to have a regular system of inspections did not cause the accident because the inspection 7 weeks beforehand was sufficient to demonstrate that no further reasonable steps could have prevented it (based on the finding that the defect was, on balance, not present at that time).
10. In Day v Suffolk (2007) EWCA 1436 the Court of Appeal (strictly obiter) considered this issue further. Pill LJ made the following observations:
There was a defect in the system of inspection, but the causative effect of that defect must, in my judgment, be considered in deciding whether liability occurs. It seems to me to follow from the wording of s 58(2) that merely to show some breach of a duty to inspect is not always sufficient. I have read the section earlier in this judgment. Section 58(2)(d) provides that a relevant factor is whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause dangers to users of the highway.
If, on the example given by Mr Cotter, the pothole had been created the day before, so that the Defendant had no knowledge of it and could not reasonably be expected to know of it, then it would appear to me to be that, even if there was a faulty inspection in October 2001, the claim for damages would fail.
11. It should be noted that this example, in common with the actual finding of fact in Williams, presupposes that the Court has accepted, even by reasonable inference, that the defect must have developed after the date of the last pre-accident inspection. As Diplock LJ explained in the Griffiths v Liverpool Corporation (1966) 3 WLR 467, what is not open to the highway authority is to base its statutory defence on mere speculation:
One last matter: the county court judge points out, quite correctly, that had a proper and practicable system of inspection been adopted by the defendants (for example, regular inspection at three-monthly intervals) it is a matter of speculation whether the defect in the paving-stone would have been discovered, for it is impossible to tell when it first manifested itself; and he appears to think it odd that the plaintiff should be entitled to recover damages for an accident which might not have been averted even if the defendants had exercised all reasonable care. It is this to which he is referring in the passage of his judgment which Sellers L.J. has cited. But, as I have already said, the defendants’ statutory defence under subsection (2) does necessitate their proving that they did exercise all reasonable care in relation to that part of the highway where the accident occurred, and if they seek to rely upon the common law defence of inevitable accident they must at least prove that even if they had exercised all reasonable care in relation to that part of the highway the accident could not have been averted. If they did not exercise such care and it is left as a matter of speculation whether the accident would or would not have occurred if they had, neither defence is made out.
12. As with all cases, the key to mounting a successful defence under section 58 will be to collate sufficient evidence to demonstrate the inherent improbability that the defect was present (and therefore missed) on the date of the last inspection. That will normally be through a combination of inspection records (in particular if they show that equivalent defects were identified elsewhere), witness evidence addressing the speed at which defects can form, google street view images and the absence of any complaints or accidents in the interim.
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