Mega Trucking Company Limited v Highways England Company Limited & Anor.

Section 41 of the Highways Act 1980 imposes an objective duty to maintain the structure and fabric of a highway so that it is reasonably passable for ordinary traffic without danger caused by its physical condition. The duty does not guarantee safety or require provision against every foreseeable accident. The ordinary use test accommodates mistakes by normal drivers, but not an exceptional combination of circumstances and extreme driving. Design may be relevant where a construction is inherently unsuitable for its position. Failures concerning warning signs, road markings, cones, risk assessment or monitoring do not themselves turn a highway in repair into one in disrepair. Those matters may instead arise under the statutory defence or another cause of action.

The claimant, an employer seeking a contribution, alleged that the defendants were responsible under section 41 of the Highways Act 1980 for the condition and layout of a temporary hard shoulder on the M25. An articulated lorry had strayed onto a filter drain during motorway works, and its driver then braked heavily and steered sharply, causing the vehicle to overturn and injure a construction worker. The issues were causation, the pre-accident condition of the filter drain and verge, whether that condition constituted actionable disrepair, the section 58 defence, and apportionment.

1. Claim dismissed. The court found that the trough or rut shown after the accident was caused substantially, if not solely, by the lorry driver’s excessive braking and sharp steering. The filter drain had not materially deteriorated before the accident. The evidence of regular inspections also supported that conclusion.
2. Section 41 of the Highways Act 1980 requires the highway to be maintained to an objective standard. It must be reasonably passable for ordinary traffic without danger caused by its physical condition. The duty is absolute only in the sense that it is not merely a duty to take reasonable care; it does not guarantee the safety of highway users.
3. The duty concerns the structure and fabric of the highway, including subsurface material and drains. It does not extend to warning signs, road markings, cones, barriers or other extraneous features. Such matters cannot convert a highway otherwise in repair into an actionable defect under section 41.
4. Following an accepted best-practice design does not necessarily answer the question if the design is inherently unsuitable for its location. Here, however, the filter drain was hardened for occasional vehicle overruns and was reasonably suitable for ordinary use. The combination of a vehicle entering the verge at about 50 mph, emergency braking and sharp steering was exceptionally rare and beyond the normal run of drivers. The highway authority was not required to construct a drain capable of withstanding that extreme event.
5. The claimed level differential and allegedly faded or misplaced white line were either non-actionable matters outside section 41 or lacked causative potency. It was therefore unnecessary to consider section 58 or apportionment. The contribution claim failed, with consequential orders to be agreed.

First-instance proceedings; no appellate history is stated in the judgment.