Crawley v Barnsley Metropolitan Borough Council

A highway authority may rely on Highways Act 1980, section 58 only if its arrangements reasonably secure highway safety in all the circumstances. A system that simply logs public reports of potentially serious defects until the next working day is inadequate where no suitably skilled person evaluates the report out of hours. Reduced weekend staffing is relevant, but cannot justify the absence of any out-of-hours evaluation. The defence concerns the reasonableness of the system, not whether a different response would certainly have prevented the injury. The majority dismissed the authority’s appeal.

The claimant tripped on a pothole on a residential road and suffered an ankle injury. A district judge found that the pothole was dangerous and actionable but held that the council had established the statutory defence under section 58 of the Highways Act 1980, dismissing the claim.

On the claimant’s appeal, His Honour Judge Robinson held that the council’s system for responding to reported defects was inadequate because public reports made before a weekend were generally left until the next working day. The council appealed to the Court of Appeal. The central issue was whether the district judge was entitled to find that the council had established the section 58 defence.

1. Disposition. By a majority, Briggs and Irwin LJJ dismissed the council’s appeal. Jackson LJ dissented and would have allowed it.
2. Appellate approach. Whether the section 58 defence is established is a multifactorial question of fact and law. An appellate court should respect the first-instance evaluation and depart from it only where it is clearly wrong or there is a serious defect or lacuna requiring the evaluation to be remade.
3. Reasonableness of the response system. The relevant question was whether the Friday report disclosed a real risk that the pothole was a Category 1 defect under the Code. A report describing deep potholes and a risk of vehicle damage was sufficient to require evaluation. A reasonable system could use reduced staffing at weekends, but it needed some means of obtaining an out-of-hours evaluation by a person with the requisite skill. A system that generally logged public reports until the next working day, while escalating only emergency-service reports or obviously dangerous defects, failed the section 58 standard.
4. Causation and safety measures. The section 58 defence was concerned with the adequacy of the authority’s system, not whether a Saturday inspection and later repair would certainly have prevented the accident. Once recognised as a Category 1 defect, the pothole required immediate repair or measures such as warning, fencing or coning, followed by repair as soon as possible.
5. Dissent. Jackson LJ considered that inspection on the next working day, with immediate action in exceptional cases, was a reasonable system. He regarded weekend staffing as a relevant circumstance and concluded that the report did not require an overnight response. He accepted Wilkinson v City of York Council [2011] EWCA Civ 207 as accurately stating the law.

1. Court of Appeal (Civil Division)—By a majority, dismissed the council’s appeal against the decision of His Honour Judge Robinson. Jackson LJ would have allowed the appeal. [2017] EWCA Civ 36
2. Sheffield County Court—His Honour Judge Robinson allowed the claimant’s appeal from the district judge, set aside the dismissal and held that the council had not established a defence under section 58 of the Highways Act 1980.
3. Barnsley County Court—District Judge Babbington held that the pothole was dangerous and actionable but that the council had established the section 58 defence, and dismissed the claim.