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Weathering the storm

Traffic lights iStock 000003944828XSmall 146 x 219Matthew Harpin reports on a recent successful appeal which will bring welcome relief to highways authorities forced to suspend their inspection programmes during extreme weather conditions.

In December 2009/January 2010, Walsall MBC’s highway network was struck by a combination of prolonged below freezing conditions and heavy snowfall that caused widespread damage to the highway network. The council was inundated with reports from members of the public concerning the presence of dangerous defects throughout the borough. The council was forced to suspend its system of pro-active highway inspections and implemented a reactive system.   

On 27 February 2010, the claimant tripped over a dangerous footway defect and suffered an injury.  But for the severe winter weather, the locus would have been inspected on or around 17 February 2010 as part of the council’s usual system of six monthly inspections. This system was on a par with the recommendations contained within Well-Maintained Highways, a Code of Practice for Highway Maintenance Management.

Sitting at Walsall County Court the Judge, DDJ Wyatt, considered:

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  • Section S.58(1) of the Highways Act 1980 – “In an action against a highway authority in respect of damage resulting from their failure to maintain a highway at public expense it is a defence to prove that the authority have taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic”; and
  • The Court of Appeal’s decision in Wilkinson v City of York Council [2011]. The City of York Council decided that for reasons of resources alone it would implement a 12-monthly inspection standard rather than the three-monthly inspection standard recommended by the Code of Practice. The Court of Appeal held that the City of York Council’s system was not what was “reasonably required” to make the part of the road that the claim related to safe. Toulson LJ found that a Section 58 Defence was designed to afford a defence to a claim for damages brought against a highway authority which was able to demonstrate that it had done all that was reasonably required to make the road safe for users, not an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe. 

DDJ Wyatt applied Wilkinson v York, and held that he could not give consideration to resources/manpower when determining whether the council had a Section 58 Defence. He found that by suspending its usual inspection system and replacing it with a reactive system, the council could not make out a Section 58 Defence.      

The Appeal

On Appeal, which was heard before HHJ Gregory, Walsall maintained that Wilkinson v York did not apply, placing strong emphasis on the reasoning of the Court of Appeal in Griffiths v Liverpool Corp [1967].  In Griffiths, Salmon LJ carefully considered the true construction of the words:

 “such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic” contained within Section 58 of the Highways Act 1980. 

Salmon LJ then asked himself:

“Do the words mean “reasonably necessary to secure” or “reasonably required for the [highway authority] to secure?” …the county court judge favoured the first meaning. He thought that if the highway was dangerous, the [highway authority] would be liable unless they could show that they had taken such care as was reasonably necessary to make it safe. On this view the circumstances in which the [highway authority] found themselves, for example lack of available labour, would be irrelevant. I cannot accept this conclusion. In my view the care postulated by this subsection is the care which in all the circumstances could reasonably be required of a highway authority. Accordingly if a highway authority could prove that it had taken such care as, in all the circumstances, it reasonably could, but that through no fault of the highway authority it had been unable take steps to make the highway safe, it would escape liability…Whether a highway authority could reasonably have been expected (i) to know the condition of the highway or (ii) to have it repaired must depend, in my view, on the labour force which it in fact had available or could reasonably have been expected to obtain; and sub-s (3) requires that such matters shall be taken into consideration in deciding whether a highway authority has established that it has taken care under sub-s (2)” (emphases added).

HHJ Gregory applied this reasoning from Griffiths and held that the decision in Wilkinson v York did not prevent resources/manpower being taken into consideration when considering the availability or otherwise of a Section 58 Defence.    

HHJ Gregory placed weight on the council’s unchallenged evidence of why it had been forced to suspend its inspection system as a direct result of the severe winter weather that was outside of its control. Irrespective of the fact that the council’s reactive system was not found to be ideal, accounting for all of the circumstances, HHJ Gregory found that the council had made out a Section 58 Defence and our Appeal was upheld.

Comment

In this era of cuts and austerity, the decision in Wilkinson v York sent a collective shudder through highway authorities.

The decision of HHJ Gregory now provides highway authorities with welcome relief, particularly given recent well publicised recent flooding and winter events that have caused widespread damage to highway networks throughout the country and which will have led to the suspension of routine highway inspections.

The decision by HHJ Gregory makes it clear that in situations where highway authorities, through no fault of their own, are forced to suspend their systems of inspection (whether this be flood/prolonged snow/ice etc), a Section 58 Defence can still be made out.

Matthew Harpin is an Associate at Browne Jacobson. He can be contacted on 0121 237 3970 or This email address is being protected from spambots. You need JavaScript enabled to view it.. The firm was instructed by Walsall Metropolitan Borough Council.

 

 

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