AC & Anor v TR & Anor

For liability under section 41 of the Highways Act 1980, a claimant must prove that the highway was dangerous to traffic, that the danger resulted from failure to maintain or repair it, and that the injury or damage resulted from that failure. For a vehicle travelling at speed, the relevant danger may arise from the condition of a stretch of road rather than a single spot. The highway authority bears the burden of establishing the section 58 defence. The statutory test is reasonableness, not mere practicability. Non-mandatory maintenance guidance is relevant, and departure from recommended inspection frequencies requires evidence-based consideration of local circumstances. A driver who reacts reasonably and instinctively to a dangerous defect will not necessarily be contributorily negligent.

The Part 20 claim arose from a road traffic accident on 20 November 2006. TR’s Land Rover entered a damaged and potholed area at the edge of the C25 while overtaking another vehicle, lost control and collided with trees. TR admitted liability to the injured claimants but sought a contribution from Devon County Council, the highway authority, alleging breach of section 41 of the Highways Act 1980. Devon relied on the statutory defence in section 58 and alleged contributory negligence. The trial was confined to liability. The central issues were whether the relevant stretch of highway was dangerous to traffic, whether Devon’s inspection and repair regime was reasonable, whether any breach caused the accident, and whether TR was contributorily negligent.

Claim allowed. TR established the elements identified in Mills v Barnsley MBC: the highway was dangerous to traffic; the dangerous condition was created by failure to maintain or repair it; and the accident resulted from that failure.

1. The relevant danger was not confined to the precise point at which the Land Rover first entered the rut. A vehicle travelling at about 45 mph covered the damaged area within seconds. The combined effect of the crumbled carriageway edge, a long rutted area containing potholes at least 8 cm deep, and water obscuring the condition beneath it rendered the relevant stretch dangerous to traffic.
2. The duty to maintain extended across the metalled surface, including the area on or beyond the white edge line. It was foreseeable that vehicles would sometimes use that area, including when overtaking or avoiding other traffic. The fact that drivers would ordinarily remain within the markings did not make the damaged edge irrelevant.
3. Devon failed to establish the section 58 defence. The applicable test was reasonableness, not practicability. The national Code of Practice recommendations were non-mandatory, but Devon had not shown that its departure from the recommended monthly inspections in favour of six-monthly inspections resulted from proper consideration of relevant local factors or a risk assessment.
4. There was no breach in failing to carry out more permanent haunching works. That was a matter of highway improvement and maintenance choice. The material failure was the absence of appropriately frequent inspections and consequential repairs.
5. The defect was likely to have existed for at least several weeks. On the balance of probabilities, monthly inspections would have detected it, and the failure to conduct them was causative.
6. TR was not contributorily negligent. Driving onto or possibly beyond the edge line did not show a failure to take reasonable care. Once in the rut, his rapid steering response was a reasonable reaction to danger, even if he may have steered more than was necessary.

The separate negligence allegation concerning the centre line was not made out because there was no evidence that its presence caused or contributed to the accident.