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Highways and Potholes - A guide to the legal rights

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It is my view that the action taken by the public in this instance is going too far; it is never worth the risk of criminal prosecution by taking matters into your own hands.  Damaging property in this manner is effectively criminal damage.  But the frustrations go on and on so it is, perhaps, understandable. The law is essentially very straightforward in matters relating to a Local Authority's duty to maintain our highways, whether main commuter routes or country lanes.  Maintenance is undertaken by their relevant Highways Authority.  However, the law takes some considerably understanding and there are many interpretations.

There are three main areas of law to be considered are:

1.         Statute and the Highways Act 1980

2.         Nuisance

3.         Negligence

The Highways Act 1980

Under Section 41 of the Highways Act 1980 the Highways Authority has a duty to maintain the highway. 

They are, under Section 58, afforded a Defence.

Section 41 (2) considers:

(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.

"Action" relates to a claim against the Highways Authority.

The application of s.41 was considered in the case of Mills v Barnsley MBC [1992], whereby the Court of Appeal adopted a three stage test as to whether or not the Highway Authority had failed in its duties.  Itis important to note, however, that it is for the Claimant (i.e. the injured party) to prove their case.  To succeed they must prove:

1.            that the highway was in such a condition that it was dangerous to traffic or pedestrians……..; and

 

2.            that the dangerous condition was created by the failure to maintain the highway; and

 

3.            the injury or damage resulted from such a failure.

(Emphasis added)

The word "dangerous" is open to interpretation and is usually considered to be that which a reasonable person would regard a presenting "a real source of danger".This has to be balanced between public and private interests.  Other issues such as street lighting are also considered.

If the Claimant is able to prove the above, then it turns to the Defendant to prove that their Defence. 

When so doing, the Defendant will argue that the regularity of their inspections and that their policy outlining the priority of such inspections is reasonable.  They will refer to their policy detailing whether monthly, six monthly or perhaps annual inspections are required to be undertaken on a particular route.  This will depend on whether the highway concerned is a main route, whether it is near a school, hospital or old peoples' home or whether it is a heavily used pedestrian route.  If so, it is likely to be inspected and maintained six monthly, or perhaps even monthly.  Conversely, if it is a minor road, annual inspections may be considered adequate. 

In addition, the Highways Authority's policy will detail intervention levels, i.e. at what depth does a pothole become a danger and at what point do they need to intervene with a repair, whether on a road or pavement?  Intervention levels on pavements will be less than that on roads.  They will usually prioritise repairs depending on the depth of a pothole; some will require immediate repair, others will not.  Some may be classed as being outside intervention levels but may be picked on the next inspection as requiring action at that point.

The manner of inspection is also relevant; the Highways Authority will most likely argue that their manner of inspection is reasonable and adequate in the circumstances.  Questions should be asked - Is it driven?  Is it walked?  If driven, is the driver expected to note potholes as he/she drives, or is there a second inspector who notes the potholes as they drive along? 

Finally, Highways Authorities will argue that do not have a never-ending pit of money and that they have to prioritise.  In this economic climate Government funding is tight and a Council's money has to go a long way.  This is currently a strong one.

All Highways Authorities should have a policy and should adhere to the same.  Their policy should be based on the Code of Practice for Highway Maintenance Management. 

That is not to say that our Councils are perfect!  Far from it.  Their inspectors miss potholes.  They fail to prioritise and carry out repairs in line with their own policies.  They fail to react to complaints from the public.  They fail to have in force an adequate system of inspection and maintenance. The list goes on and on.

Have a look at this recent article in the Southern Daily Echo with regard to local pothole claims and Government funding; an interesting local comparison:

Nuisance

The law of nuisance is a common law (i.e. not set down by statute) and can be categorised as either:

1.            Private nuisance which operates mainly between neighbouring landowners and protects a person's use and enjoyment of land.  This is not relevant to highways claims against Local Authorities.

2.           Public nuisance - no invasion of property rights is necessary.  The Claimant does not have to have an interest in the land (Tate & Lyle v GLC [1983]).  Rather an act or omission which affects "the reasonable comfort or convenience of a class or group of Her Majesty's subjects".  As such, loss or damage is suffered by the local community as a whole rather than by individual victims.  If a Claimant is a member of the affected class and has suffered personal injury as a result they may pursue a claim in nuisance.  The injury must be over and above that suffered by the class of persons affected, i.e. different in nature or extent. 

A defect may constitute a nuisance upon the highway if it made the highway dangerous and/or less convenient for public passage.  A single event is actionable and damages (compensation) may be recovered for personal injury, damage to property and economic loss (Benjamin v Storr [1874]).

It should be noted that public nuisance is essentially a criminal offence.

There is also statutory nuisance but such is usually concerned with public health and enforcement in environmental terms.

The Courts will treat nuisance as a type of negligence action.

Negligence

Common law negligence is an old established principle.

An objective standard is applied, that of the "reasonable man"; i.e. how would the "reasonable man" have behaved in circumstances in which the Defendant found himself?   The definition of negligence was set down in the case of Blyth v Birmingham Waterworks [1856] – "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

No account is taken of individual disabilities or peculiarities.  For example, in Nettleship v Weston [1971] it was shown that a learner driver will be judged against the same standard as a reasonably prudent, qualified driver.  A personal who claims to have a special skill is judged by the standards of a reasonable person possessing the skill which he claims to possess which can be illustrated by the leading case of Bolam v FriernHospital Management Committee [1957].  Bolitho v City and Hackney Health Authority [1997] goes even further.    I am of the view that such tests should be applied to highways inspectors.  If they hold themselves out as suitably qualified to undertake their work, they should be judged accordingly.  As should us all in our chosen profession.

For a claim in negligence to succeed a Claimant must prove:

1.         that the Defendant owed them a duty of care; and

 

2.         that the duty was breached; and

 

3.         that the breach of duty caused their injury (this is known as "causation"); and

 

4.         to what extent that injury was caused by the Defendant's negligence.

It is also necessary for a Claimant to prove that causation was not too remote as set down in the case of The Wagon Mound (No 1) [1961].

The leading case in negligence is Caparo Industries plc v Dickman [1990] which sets down what is known as the "Caparo three stage test":-

1.            harm must be reasonably foreseeable as established in Donoghue v Stevenson [1932] as a result of the defendant's conduct; and

2.            the parties must be in a relationship of proximity; and

3.            it must be fair, just and reasonable to impose liability

The burden of proof is very much on the Claimant.

Summary

As can be seen above, pothole claims are not as straight forward as they may appear.  They are incredibly difficult to win and the onus is on the Claimant to prove their case.  This is often where the difficulty arises.

 - Are there any witnesses?  Preferably independent witnesses, not family members.  Do you have their contact details?


- Do you have photographs of the exact defect which was the cause of your accident, taken at the time of your accident or shortly thereafter?


- Do you know exactly where the defect is and can you identify it?  It is no good saying it was "somewhere around here" and that "the area is in a terribly state generally".  The Courts are only interested in the actual defect which caused your accident and subsequent injury?

- Have you made any prior complaints to the Council?  Did you report your accident?


- Did you go to hospital or your GP immediately after your accident and, if so, did you tell them about the pothole and the relevance to your injury?


- Is the road/pavement where you suffered your accident a busy pedestrian area/near a school, hospital, etc. or is it in a residential area?


- What was the weather like at the time of your accident?  Was it raining? Were leaves disguising the existence of the defect?


- Were you aware of the defect before your accident?  Is it local to you or near to where you live?  Do you take this route regularly?  Or was this the first time that you had taken that particular route?


- What footwear were you wearing?


- Were you carrying anything at the time?


Some one these questions may go to what is known as "contributory negligence", i.e. partial fault, but nonetheless they may affect your claim.

The bottom line is that the Courts are clamping down on such claims and are taking a much harder approach on Claimants.  Such claims are less likely to succeed than they once were. The case of KentCounty Council v Lawrence[2011] relates to a pavement trip but underlines the Courts' current stance on highways claims.  Potholes are a fact of life.

Deborah Blackmore 
Legal Executive
Personal Injury team

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