Nash v Hertfordshire County Council

A highway authority is liable under section 41 of the Highways Act 1980 only where the highway presents a danger which may reasonably be anticipated in ordinary use, the dangerous condition results from failure to maintain or repair, and the condition causes the injury. Dangerousness requires a sensible balance between private and public interests; every defect is not actionable. The claimant must prove the danger at the location relied on and its causal contribution on the balance of probabilities. Where the evidence does not establish that the defects were a real source of danger, or that they caused the accident, the claim fails. The court need not determine the statutory defence under section 58.

The claimant sought damages after colliding with a van while cycling around a bend on Mangrove Lane. He alleged that potholes and other defects caused him to swerve into the van’s path, and that Hertfordshire County Council had breached its duty under section 41 of the Highways Act 1980.

The council denied that the defects were dangerous or causative. It contended that the claimant had been riding too fast and too wide, relied on its inspection and maintenance arrangements, and pleaded the section 58 statutory defence. The issues were whether the highway was dangerous, whether any breach caused the accident, and whether the defence was established.

1. Dangerousness. Applying the three-stage approach in Mills v Barnsley MBC and the sequence identified in Devon CC v TR, the claimant had to prove that the highway was dangerous to traffic or pedestrians in ordinary use, that the condition resulted from failure to maintain or repair, and that the injury resulted from that failure.
2. The relevant danger was not any foreseeable risk from a minor defect. The question required a reasonable balance between private and public interests, having regard to the standard an authority could reasonably be expected to meet. The claimant had to establish danger at the point relied upon; defects elsewhere or a generally poor road condition were insufficient.
3. The reliable evidence did not establish that the potholes exceeded 40 mm. The road was a country lane, the defects were toward the side of the carriageway, and approximately two-thirds of the road remained available without contact with them. Individually or collectively, they did not constitute a real source of danger of the kind required by the authorities. There was no breach of section 41.
4. In any event, causation was not proved. The claimant’s contemporaneous accounts that he had travelled too fast and too wide were preferred to his later account that he had swerved to avoid potholes. The physical evidence and expert evidence supported the conclusion that he was travelling at approximately 16–18 mph, beyond the centre of the road, and could have stopped had he been travelling at about 10 mph. The potholes played no material part in the collision.
5. It was therefore unnecessary to determine the section 58 defence. For completeness, the court found that Mangrove Lane had correctly been classified as a 4a rural access road. The claim failed.