Highway - Duty of highway authority
AC and others v TR and another: Queen's Bench Division (Mrs Justice Slade DBE): 29 March 2012
The proceedings arose out of a road traffic accident. The accident occurred on the C25 road between Honiton and Smeatharpe (the road) as TR was overtaking another vehicle. TR drove into the offside lane and the offside tyres of his car went into a potholed area at the side of the metalled surface. He lost control of his vehicle after he steered set out of the rut onto the carriageway and his vehicle swerved across the road and collided with trees on the nearside verge of the road. AC and DC suffered catastrophic injuries. TR admitted liability but brought a claim against the local highway authority for breach of its duties under section 41 of the Highways Act 1980 (the act).
The issues which fell to be determined were: (i) whether the authority had breached its duties under the act; (ii) if, liability were to be established, whether the authority could rely on the statutory defence under section 58 of the act; and (iii) whether TR had been contributorily negligent. Consideration was given to Mills v Barnsley MBC  PIQR P 291 (Mills v Barnsley), in which it was established that in order for a plaintiff to succeed against a highway authority, the plaintiff had to prove that: (a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger might reasonably have been anticipated from its continued use by the public; (ii) the dangerous condition had been created by the failure to maintain or repair the highway; and (c) the injury or damage had resulted from such a failure. The authority gave evidence in respect of their inspection regime and it was noted that the frequency of inspection which the authority applied to category six roads, of which the instant road was one, was six monthly. The claim would be allowed.
(1) If an accident resulted from the dangerous state of repair of a stretch of road rather than a particular spot on the road, applying established principles, it was material to consider whether the condition of the relevant stretch of road and not just at one spot had been dangerous and whether the dangerous condition had been created by the failure to maintain or repair the highway (see  of the judgment).
In the instant case, there were a number of features which TR had encountered which demonstrated that the highway had been in such a condition that it was dangerous to traffic. It was the failure to carry out repairs of the pothole and the overriding damage on the relevant stretch of the road that had rendered it so. On the evidence regarding the state of the relevant stretch of the relevant section of the road and the adjacent verge, the accident had resulted from the authority's failure to maintain or repair the highway (see - of the judgment). TR had satisfied all the elements listed in Mills v Barnsley (see  of the judgment).
Mills v Barnsley Metropolitan Borough Council  PIQR P 291 applied; Burnside v Emerson  3 All ER 741 considered; Rider v Rider  1 All ER 294 considered; James v Preseli Pembrokeshire District Council  PIQR P 114 considered; Jones v Rhondda Cynon Taff CBC  EWCA Civ 1497 considered.
(2) The statutory test to be applied in deciding whether the authority had made out a section 58 defence was one of reasonableness not practicality. The burden was on the authority to establish they took such care as in all the circumstances had been reasonably required to secure that the part of the highway to which the action related, was not dangerous to traffic (see  of the judgment).
In the instant case, the authority had not established that a six monthly maintenance inspection regime for their category six roads, including the road, had been appropriate. Further, the state of repair of the relevant stretch of the road where the accident had happened, had been well below a standard a reasonable driver could expect. Furthermore, the authority could have reasonably been expected to know before the accident of the poor condition of the offside edge and verge of the highway and that they were likely to cause danger to traffic.
Finally, on the balance of probabilities, the failure to carry out monthly inspections with consequential repairs had been causative of the accident (see , , ,  of the judgment).
(3) In the circumstances, TR did not by careful driving fail to prevent or avoid the consequences of the breach of the authority's duty to maintain the highway. He had not been contributorily at fault for the accident (see  of the judgment).
Christopher Sharpe QC and Matthew White (instructed by Greenwoods) for TR; Lord Faulks QC and Angus Piper (instructed by Veitch Penny Solicitors) for the authority.