Wilkinson v City of York Council

A highway authority's duty to maintain a highway is an absolute duty to keep its physical surface in repair. Where a dangerous defect establishes a breach, the authority bears the burden of proving the statutory defence under section 58 of the Highway Act 1980.

The section 58 inquiry is objective and risk-based. It asks what care was reasonably required to keep the relevant highway safe for expected traffic. Financial and manpower constraints do not excuse a maintenance regime which falls below that standard. Non-statutory national guidance may assist the assessment. A claimant need not prove that the authority was negligent or establish when a defect first arose; reasonable care is the authority's statutory defence.

The claimant, aged 17, was injured when her bicycle struck a pothole on Whitby Drive, York. The road had last been inspected about ten months earlier under the council's annual inspection regime.

A Deputy District Judge in the Leeds County Court found that the pothole amounted to a failure to maintain the highway and rejected the council's section 58 defence. The judge reduced damages by 50 per cent for contributory negligence. HHJ Hawkesworth QC allowed the council's appeal and dismissed the claim on the basis that section 58 afforded a defence.

The claimant appealed. The central issues were whether the road was in disrepair for section 41 purposes, whether an annual inspection regime satisfied section 58 despite national guidance favouring more frequent inspection, and whether causation required proof of when the pothole developed.

1. Appeal allowed. Toulson LJ, with whom Wilson LJ and Lord Neuberger MR agreed, restored the Deputy District Judge's judgment.

2. The pothole was a defect in the road surface which was dangerous to expected traffic. It therefore supported the implicit and unassailable finding of breach of the absolute duty under section 41 of the Highway Act 1980. That duty concerns repair and keeping in repair; it does not require proof that the authority was negligent.

3. The section 58 defence required an objective assessment of the care reasonably required to ensure that this road was not dangerous. The national maintenance code was guidance rather than law, but it was material evidence. The road served users beyond local residents, and the council supplied no reason, apart from finance and staffing, for inspecting it annually rather than more often. The Deputy District Judge was entitled to find annual inspection inadequate.

4. The Circuit Judge erred in treating resource allocation as a reason for judicial restraint. Section 58 focuses on risk, the condition and character of the highway, expected traffic, appropriate maintenance standards, and the authority's knowledge. Parliament had not made the authority's competing financial priorities a defence to doing what was reasonably necessary to make the road safe.

5. The council's new causation argument failed. The claimant had to prove a dangerous condition caused by a failure to maintain and resulting injury, but did not have to prove when the pothole developed or a negligent failure to repair. Reasonable care remained a statutory excuse which the authority had to establish.

6. The court also observed that, even in a fast-track case, a judge should identify the central findings and briefly explain contested conclusions.

• Court of Appeal (Civil Division): Allowed the claimant's appeal and restored the Deputy District Judge's judgment.
• Leeds County Court (HHJ Hawkesworth QC): Allowed the highway authority's appeal and dismissed the claim, holding that section 58 afforded a defence.
• Leeds County Court (Deputy District Judge Vaughan): Found for the claimant for failure to maintain the highway, rejected the section 58 defence, and reduced damages by 50 per cent for contributory negligence.