Rance v Essex County Council

A claimant alleging injury from a highway defect must first establish that the highway was dangerous to traffic, that the danger resulted from failure to maintain or repair it, and that the defect caused the injury. Only then does the highway authority bear the burden of proving the statutory defence under Highways Act 1980, section 58. The defence asks whether, in all the circumstances, the authority took the care reasonably required to secure that the relevant part was not dangerous. Published maintenance codes provide guidance but do not impose a rigid regime or make every breach determinative. The court reviews the trial judge’s conclusion for evidential support and rationality, rather than substituting its own assessment. A highway authority may reasonably defer repairs where continuing heavy works would repeatedly recreate the defect, provided the statutory criteria are met.

The appellant was injured when the wheels of her car left the metalled carriageway and entered a rut in the grass verge of a secondary distributor road. The verge formed part of the highway. The rut had been created by unusually heavy construction traffic, and the highway authority knew of it but decided to defer remedial work until that traffic ceased.

The claim alleged breach of the statutory duty under section 41 of the Highways Act 1980 and negligence. His Honour Judge Bradbury in the Colchester and Clacton County Court dismissed the claim. The central issues on appeal were whether the judge had sufficiently found a dangerous highway condition and breach of section 41, whether the statutory defence under section 58 had been approached correctly, and whether the evidence supported the conclusion that the defence was established.

Appeal dismissed with costs. Otton LJ delivered the first judgment and Beldam LJ agreed.

1. To establish liability for failure to maintain or repair a highway, the claimant must prove the three matters identified in Mills v Barnsley Metropolitan Borough Council [1992] 1 PIQR 291: the highway was dangerous to traffic or pedestrians because danger could reasonably have been anticipated from continued public use; the dangerous condition resulted from failure to maintain or repair; and the injury resulted from that failure. Only then does the section 58 defence require consideration.
2. The trial judge’s reasoning was ambiguous, but it was proper to infer that he had found the road foreseeably dangerous to reasonable drivers and that its condition constituted a breach of the statutory obligation. It was therefore appropriate to consider section 58.
3. The statutory defence under section 58 is distinct from negligence. The claimant need not prove lack of reasonable care by the authority or that such lack of care caused the injury. The authority bears the burden of proving that it took such care as was reasonably required in all the circumstances. The court must have regard to the factors in section 58(2), including the highway’s character, expected traffic, appropriate maintenance standard, expected state of repair, the authority’s knowledge, and warning notices where timely repair was not reasonably possible.
4. The judge asked the correct question and was entitled to accept the authority’s explanation. The code of good practice for highway maintenance supplied guidance only. It did not impose a rigid inspection and repair regime. Technical non-compliance did not automatically establish negligence or deprive the authority of the section 58 defence where the breach was not causative of the accident.
5. The conclusion that the authority had discharged the section 58 burden was supported by material evidence and was not Wednesbury unreasonable. Since there was no primary liability, contributory negligence did not arise.

1. Court of Appeal (Civil Division) — The appeal from the Colchester and Clacton County Court was dismissed with costs. The court upheld the trial judge’s conclusion that the authority had established the statutory defence under section 58 of the Highways Act 1980. The decision is reported under [1997] EWCA Civ 1064.
2. Colchester and Clacton County Court — His Honour Judge Bradbury dismissed the claim. No separate citation is stated in the judgment.