Devon CC v TR

A non-statutory highway-maintenance code is evidence of good practice, not a mandatory standard. A highway authority may adopt inspection intervals different from those suggested by the code without a documented, specific justification. The question under section 58 is whether it exercised reasonable care in all the circumstances, including the history and known risks of the particular road.

A breach of section 41 is established where a vehicle enters a defective area and, while travelling through it, reaches a dangerous part that causes the accident. A driver who fails to notice and avoid a visible road defect despite ample room to do so may be contributorily negligent.

TR lost control of his Land Rover while overtaking on a country road. His passengers were seriously injured. Their claims against him settled, leaving his third-party claim against Devon County Council as highway authority.

Slade J held that the road-edge rutting was dangerous, that it caused the accident, that Devon could not rely on the statutory defence under the Highways Act 1980, and that TR was not contributorily negligent: [2012] EWHC 796 (QB). Devon appealed those conclusions.

The central issues were breach of section 41, the section 58 reasonable-care defence, and whether TR contributed to the accident.

1. Appeal allowed in part unanimously. The court upheld Devon’s liability for breach of section 41 of the Highways Act 1980 and rejected its section 58 defence. It substituted a finding that TR was contributorily negligent to the extent of 50%.

2. The highway authority’s section 41 duty is to keep the highway in a condition that does not endanger ordinary users. The court applied Rider v Rider [1973] QB 505. James v Preseli Pembrokeshire DC [1993] PIQR P114 did not assist Devon. That case requires the claimant to show that the accident resulted from danger at the relevant place, but here the vehicle entered the rut before moving into its plainly dangerous wider part. The rut caused the loss of control. The judge was also entitled to find that the point of entry was itself dangerous.

3. The judge erred in treating the non-statutory Well maintained highways code as a standard from which Devon could depart only after recording a positive and specific justification. The code was evidence of general good practice, but it was expressly non-mandatory. Reasonable care under section 58 required an assessment of all the circumstances, including traffic use, experience and accident history. The evidence that other authorities used six-month inspection cycles was relevant professional evidence, consistently with Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582.

4. Nevertheless, the statutory defence failed on the facts of this road. Its inspections repeatedly found urgent safety defects, it was known to be prone to heavy-vehicle overriding damage, and deterioration after the latest inspection was probable. The judge was entitled to find that this road required inspections more frequent than every six months.

5. TR was not negligent merely because he had only about 0.7 seconds to react after leaving the rut. However, he significantly failed to keep a proper lookout by not seeing and avoiding the visible damaged area despite ample available road width. That failure justified a 50% reduction for contributory negligence.

• Court of Appeal (Civil Division) — Allowed Devon’s appeal only to substitute a finding that TR was 50% contributorily negligent: [2013] EWCA Civ 418.
• High Court (Queen’s Bench Division) — Slade J held Devon liable under the Highways Act 1980 and found TR not contributorily negligent: [2012] EWHC 796 (QB).