No sign of liability

District Judge Julie Exton on whether a highway authority may ever be legally liable for an accident

Section 41 of the Highways Act 1980 (the Act) imposes on a highway authority a duty to maintain a road.

It states: 'The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty...to maintain that highway.'

But what does this mean and how far does this duty extend?

Statutory defence

Section 58 of the Act provides a statutory defence for the highway authority if it has taken 'such care as is in all the circumstances reasonably required'.

Maintain includes repair

Section 329 of the Act provides that maintenance includes repair and 'maintain' and 'maintainable' are, therefore, to be construed accordingly.

But, what else?

Overturning the Court of Appeal in Goodes v East Sussex County Council [2000] 1 WLR 1356, the House of Lords held that it was not appropriate to extend the absolute duty to maintain the fabric of the road in good repair to encompass a duty to prevent or remove the formation or accumulation of ice and snow.

There will, no doubt, have been some public policy aspect to this decision.

It is, of course, one thing for a highway authority to fail in its duty when it has had the opportunity to monitor and inspect its roads (and pavements) on a periodic basis but it is quite another thing to impose liability on it based on the vagaries of the British weather.

If its duty extended this far, it could not avoid being in breach from time to time.

Road markings

Goodes has been considered recently by the Court of Appeal in Gorringe v Calderdale Metropolitan Borough Council [2002] EWCA Civ 595.

In that case, Ms Gorringe had a head-on collision with a bus at the crest of a hill in West Yorkshire.

On the approach to the crest, there was a point at which the road dipped gently and turned to the right before rising uphill to the crest.

Before the dip, the course of the road to the bottom of the dip and to the top of the crest was clearly visible.

However, once in the dip, a driver could not see the road beyond the crest until virtually at the apex of the crest.

In particular, he would not be able to see the sharp left hand bend at the crest, the sudden change of gradient beyond it or the adverse camber.

An 'Uneven Road' triangular hazard warning road sign stood between the dip and the crest.

Importantly though, there had also once been a 'Slow' road marking, which the judge found was no longer visible as a result of wear and tear and/or resurfacing.

The judge at first instance held that the failure to repaint the road marking constituted a breach of the council's duty to maintain the highway under section 41.

The Court of Appeal disagreed.

The judge's decision was untenable in the light of Goodes.

A road marking was clearly not part of the physical or structural condition of the roadway and, therefore, lay outside the council's duty to maintain the highway.

Measures designed to promote road safety

So far, injured claimants would seem to be facing an uphill battle to establish liability against a highway authority.

However, there was another provision considered by the court in Gorringe.

Section 39 of the Road Traffic Act 1988 states:

(2) Each local authority must prepare and carry out a programme of measures designed to promote road safety...

(3) Without prejudice to the generality of subsection (2) above, in pursuance of their duty under that subsection each local authority:

(a) Must carry out studies into accidents arising out of the use of vehicles on roads or parts of roads, other than trunk roads, in their area;

(b) Must, in the light of those studies, take such measures as appear to the authority to be appropriate to prevent such accidents, including...

the construction, improvement, maintenance or repair of roads for which they are highway authority...

and other measures taken in the exercise of their powers for controlling, protecting or assisting the movement of traffic on the roads.

The Court of Appeal had already considered section 39 in Larner v Solihull Metropolitan Borough Council (2000) LTL, 20 December.

Ms Larner had emerged from a minor road onto a major road.

She had passed two 'Give way' signs on each side of the minor road at the mouth of the junction.

She argued that there was a long history of accidents at this junction and the council should have provided additional advance warning of the fact that she was required to give way.

In spite of the apparently mandatory wording of section 39, the court was of the opinion that it still left a considerable degree of discretion to the relevant local authority.

It was, in fact, simply a 'target' duty requiring the council to do no more than exercise its powers in the manner that it considered appropriate.

Although a common law duty of care might, in exceptional circumstances, be imposed upon the statutory duty under section 39, it would have to be shown that the default by the relevant authority fell outside the ambit of that discretion, for example, where the authority had acted wholly unreasonably.

In Gorringe, the council conceded that it was fully aware of the nature of the road layout at the accident site but contended that there was no reason for it to have considered that the layout constituted a known danger or an accident 'blackspot.' The Court of Appeal agreed.

Further, even if the council had properly considered the site and its accident history, it would not have been irrational to decide not to carry out individual measures on that site in advance of centrally funded general improvements.

If it had so decided, it would not have acted wholly unreasonably.

These were not exceptional circumstances.

A sign of what's to come

None of this is really very new.

For some time the courts have been reluctant to impose liability on highway authorities in such cases.

In 1994, (in Lavis v Kent County Council (1994) The Times, 24 November) a motorist's claim alleging failure by the authority to erect a road sign in addition to transverse double broken white lines already provided as a warning of a T-junction ahead was unsuccessful.

In the absence of evidence that a competent road engineer, exercising reasonable care and skill, would advise the erection of some additional warning sign or other indicator, it had not been established that anything else was necessary.

In short, always ask an authority what steps it has taken to fulfil its obligations under section 39.

However, given the present state of the law, unless it has acted wholly unreasonably or there are exceptional circumstances, your enquiries may prove to be a road that leads nowhere.

District Judge Julie Exton sits at Weston-Super-Mare County Court