Rogers v National Assembly for Wales

Liability under section 41 of the Highways Act 1980 may arise where a road surface makes a highway dangerous for ordinary traffic. The claimant must establish causation. Once breach is shown, section 58 places the burden on the highway authority to prove that it took reasonable care in all the circumstances. That assessment may include the authority’s knowledge of danger, accident history, testing, the urgency of remedial work and any unexplained delay. The court must avoid hindsight and recognise the practical constraints of highway maintenance. However, inadequate investigation or unreasonable delay may defeat the statutory defence. Whether a surface is dangerous, and whether it caused an accident, are fact- and evidence-specific questions. An appellate court should not interfere with findings and inferences properly open on the evidence.

Stephen Rogers was injured when his car crossed the centre of the A447 and collided with another vehicle. His wife was killed. He alleged that the accident resulted from the defective and dangerously low skid resistance of the road surface, in breach of the highway authority’s duty under the Highways Act 1980.

Andrew Smith J held that primary liability was established and rejected the highway authority’s defence under section 58. The National Assembly for Wales appealed, challenging the findings on causation and dangerousness, and contending that the statutory defence had been made out. The central issues were whether the road surface caused the accident and whether the authority had taken the care reasonably required before the accident occurred.

1. Disposition. Lord Justice Judge gave the leading judgment. Lord Justice Laws and Mr Justice Charles agreed. The appeal was dismissed, with the appellant ordered to pay the respondent’s costs.
2. The trial judge was entitled to find that the accident was caused by the road surface. Mr Rogers had been driving carefully and at a reasonable speed. There was no evidence of a mechanical defect or another apparent cause of the sudden manoeuvre. The road was not straight at the relevant point, the surface was damp, and testing showed unusually low friction. Those findings supported the inference that a steering correction caused the vehicle to lose control.
3. The question whether the surface was dangerous to ordinary traffic, and whether it caused the accident, depended on the evidence concerning this road and this accident. The Court of Appeal could identify no proper basis for interfering with the trial judge’s assessment of the physical, expert and accident evidence.
4. Under section 58 of the Highways Act 1980, the authority bore the burden of proving that it had taken the care reasonably required in all the circumstances. The judge correctly avoided deciding the issue by hindsight or merely by reference to the period that had elapsed. He was entitled to examine the authority’s response after the fatal accident in March 1997, including its knowledge from testing and the cluster of later accidents.
5. The initial investigation was not criticised, but by mid-May urgent consideration had been given to resurfacing. The judge was entitled to find that further testing caused unjustified delay, that sufficient information was available by June to require resurfacing, and that the work could and would have been completed before the accident. The authority’s evidence did not adequately explain why remedial action was delayed. The Design Manual for Roads and Bridges did not undermine those findings; parts of it were advisory and educational, and it did not establish a fixed skid-resistance threshold.

1. High Court, Queen’s Bench Division: Andrew Smith J held on 25 November 2002 that liability was established against the highway authority and that the section 58 defence had not been made out. No citation for that decision was stated.
2. Court of Appeal (Civil Division): In [2004] EWCA Civ 250, the National Assembly for Wales’ appeal against primary liability was dismissed. The appellant was ordered to pay the respondent’s costs.