This LexisPSL Local Government article, produced in partnership with Nicholas Hancox, examines how the quality of highway maintenance required of those responsible for it depends almost entirely on the expected ordinary traffic on the highway in question.
In Brett v Lewisham LBC  All ER (D) 1464 Chadwick LJ said:
'It is pertinent to keep in mind that there was, at common law, no liability in damages for failure to repair or maintain. See the analysis of the position in the speech of Lord Justice Diplock in Griffiths v Liverpool Corporation. A statutory duty to maintain was imposed on the local highway authority by s 44(1) of the Highways Act 1959, now s 41(1) of the Highways Act 1980 (HiA 1980), but, until s 1(1) of the Highways (Miscellaneous Provisions) Act 1961 came into force in 1964, that statutory duty gave rise to no liability in a civil action by a private individual for damages sustained by him as a consequence of mere non-repair. The abrogation of the rule which excluded liability for damages suffered as a consequence of non-repair was tempered by the inclusion, in s 1(2) in the 1961 Act, of a statutory defence. It was a defence in an action for damage resulting from non-repair for the highway authority to prove that it had taken such care as in all the circumstances was reasonably required to secure that that part of the highway to which the action related was not dangerous. The relevant provision is now found in s 58(1) of the HiA 1980.'
In Griffiths v Liverpool Corporation  2 All ER 1015, Diplock LJ referred to what he described as two crucial differences between a liability in negligence (for misfeasance) and the statutory liability under what was then the section 44(1) of the Highways Act 1959 (for non-feasance). He said:
'To succeed in an action for negligence the plaintiff must prove, inter alia:
- that the defendant had been guilty of lack of reasonable care, and
- that such lack of reasonable care was the cause of the injury to him
In an action under the statute against a highway authority for injury sustained from a danger on a highway, the plaintiff need prove neither of these things in order to succeed. Unless the highway authority proves that it did take reasonable care, the statutory defence under [what is now s 58(1) of the Highways Act 1980] is not available to it all.'
In Rogers v National Assembly for Wales  All ER (D) 290 (Jan) the highway authority had resurfaced the road where Mr Rogers' accident later took place. The authority tested the skid resistance after the resurfacing and found it wanting. It took the authority 16 months to put the resurfacing right and during that time there were several fatal accidents on the road. Despite its knowledge of these dangers, the repair works were delayed again and again. The authority was liable for damages, unable to rely on the defence in the section 58 of the Highways Act 1980 (HiA 1980).
By contrast, the level of maintenance required on a rural footpath is almost none at all, as long as the path remains viable for pedestrians, wearing suitable footwear.
Repair, not improve, nor make it worse
The duty is to keep the highway in reasonable condition, not to improve it. In Gautret v Egerton (1867) LR 2 CP 371 Willes J said:
'…if I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it I may be liable for the consequences; but if I do nothing, I am not. Similarly, if a highway already has cellar doors or trees in it, there is no duty on the highway authority to remove them. Having said that, they must not make the situation worse, by, for example, altering a carriageway to a design which increases the likelihood of vehicular collisions with the trees.'
In the House of Lords case of Stovin v Wise  3 All ER 801 Mrs Wise’s vehicle emerged from a side road and she ran down Mr Stovin because she was not keeping a proper lookout. When he sued her for damages, she (or rather her insurance company) joined Norfolk County Council in as a third party, because the visibility at the intersection was poor and they said that the council should have done something to improve it. The council had statutory powers that would have enabled the necessary work to be done and there was evidence that the relevant officers had decided in principle that it should be done, but they had not got round to it. The decision of the majority in the House of Lords was that the council owed no private law duty to road users to do anything to improve the visibility at the intersection. The statutory power could not be converted into a common law duty:
'Drivers of vehicles must take the highway network as they find it.'
If a highway crosses a river by a ford, it is not necessary to build a bridge. Nor is it necessary to ensure that the ford is traversable when the river is in flood. What is necessary, however, is not to organise any maintenance works so badly that a repair to the highway actually makes it more difficult to traverse the ford.
In Bright v Ministry of Transport (1971) 69 LGR 338 double white lines had been removed badly from a main road. An expert had given evidence that the work could and should have been done better. An injury arose when a motorcyclist fell off, because his bike got caught in the 700-yard groove that resulted from the poor work. The poor maintenance caused the injury. The highway authority was liable in negligence.
Inspection and reporting regimes
Routine highway maintenance requires routine inspections of the highway surface. Potholes and broken slabs are bound to appear from time to time and the courts have taken a reasonable view of the cost-effectiveness of routine inspections. Highway users also report defects from time to time and the authority must have a system that receives and assesses incoming reports of damage and then allocates a reasonable priority to any necessary repairs. In the short term a large new pothole or a fallen lamp column can (and should) be simply fenced off to reduce the immediate danger.
In Shine v Tower Hamlets  All ER (D) 79 (Jun) the authority had known for three months that a bollard was loose and had failed to make it safe. It was liable when Matthew Shine was injured playing on the bollard.
In Owen v Westminster CC  All ER (D) 36 (Jun), and again in Harrison v Derby CC  EWCA Civ 583, the claimant was injured on a loose or depressed paving slab, but each highway authority showed that it had in place a good system of inspections and (in Owen) of responding to information from the public. Neither highway authority was liable under HiA 1980, s 58.
The evidence went the other way in Jacobs v Hampshire CC and in CC v TR  EWCA Civ 418. In Jacobs v Hampshire CC (1984) Times, 28 May a cyclist was injured after hitting a hole in the road caused by water penetration at a point where a tarmac surface was joined to a cobbled surface. The evidence was that this sort of joint was particularly susceptible to water penetration damage within any two-month period. The highway authority’s regular six-monthly inspection was therefore held to be inadequate and it was liable for a breach of its statutory duty. In CC v TR the Court of Appeal upheld the judgment of the High Court that (on the facts) the Highway Authority should have known that the road was in need of repair. It knew of the risks. The road was a main road and its inspection regime was inadequate for the purpose.
The quality or qualifications of the inspector must also be adequate. In Poll v Viscount Asquith  All ER (D) 158 (May) a motorcyclist on a highway collided with a fallen tree and the question arose as to how well the adjacent landowner defendant had had his trees inspected. The Asquiths has used a level 1 tree inspector, who simply drove past the tree in question and failed to appreciate the latent danger. A level 2 tree inspector would have realised that this type of ash was susceptible to fungal infection and therefore a risk, and would have got out of their car to examine the tree more closely, seen the fungus and removed the latent (and in this case actual) danger to passing traffic. This was a private landowner case, rather than a highway authority case, but the principle holds good. Judgment in negligence was given against the Viscount.
Extraordinary traffic can do extraordinary damage to the highway and the authority’s duty to keep the highway in repair does not extend to the damage done by extraordinary traffic. Extraordinary traffic for these purposes often consists of a temporary period of heavy lorry traffic during the construction of a building next to a highway or the rare passage along a particular route of a very heavy or very large vehicle delivering or collecting some enormous machine. This (in either case) may damage the road surface, the footways and the street furniture. The rare, enormous load often requires the temporary removal of street lighting columns etc to make enough room.
There is a procedure in HiA 1980, s 59 under which the extra costs of highway maintenance wrought by extraordinary traffic can be either agreed in advance or recovered from the damaging party afterwards.
If the extraordinary traffic is due to the opening of a new factory or quarry and the consequent permanent increase in HGV traffic on a particular road, then the period for which the highway authority can recover its extra costs is limited to the duration of the extraordinariness of the new traffic. After a year or two, the extra lorries will have become the ordinary traffic along that road. HiA 1980, s 58 then ceases to apply.
Flooding, ice and snow
Maintenance affected by weather conditions is discussed in the LexisPSL Local Government Practice Note: Highways affected by weather.
Moss and algae
In Rollinson v Dudley Metropolitan Borough Council  All ER (D) 72 (Dec), the court held that the presence of moss or algae did not amount to material disturbance or damage to a road, pavement or pathway or the surface and could not be said to render a pathway 'out of repair'. It confirmed that authorities have no duty under the HiA 1980, s 41 to prevent or remove moss on the surface of the highway.
Highway maintenance liability
This summary is based largely on the House of Lords decision in Gorringe v Calderdale MBC  2 All ER 326:
- if a highway authority is in breach of its duty under HiA 1980, s 41(1) (as amended in 2003), it can be sued if damage is thereby caused
- if it is to escape liability, it must bring itself within the HiA 1980, s 58 defence, ie the authority took all reasonable care having regard to usage etc
- in addition, a highway authority may be liable at common law for damage attributable to dangers that it has introduced, or, in the case of dangers introduced by some third party, dangers that it has unreasonably failed to abate
- members of the public who drive cars on the highways of this country are entitled to expect that they will be kept properly in repair; they are entitled to complain if damage is caused by some obstruction or condition of the road or its surroundings that constitutes a public nuisance and they are entitled to complain if they suffer damage by the negligence of some other user of the highway
- an overriding imperative is that those who drive on public highways do so in a manner and at a speed that is safe having regard to such matters as the nature of the road, the weather conditions and the traffic conditions
- drivers are first and foremost themselves responsible for their own safety
Further guidance was given by Haddon-Cave J in Rollinson after reviewing existing authorities on the interpretation of HiA 1980, s 41 at paragraph 24 of his judgment where he said:
(1) First, the s.41(1) duty to maintain the highway is properly to be understood as being to “repair” and “keep in repair” the highway.
(2) Second, the duty does not include a duty to remove surface-lying material, accretions, obstructions or spillages, whether or not dangerous.
(3) Third, the duty does include a duty to keep the drains and substructure of the highways clear and in good repair.
(4) Fourth, the question of whether or not a particular problem, defect, contaminant or accretion will render a road, pavement or pathway out of “repair” such as to engage s.41(1) will depend upon the precise nature thereof but relevant considerations will include (a) whether it is permanent or transient, (b) whether it amounts to, or comprises, material disturbance or damage to the road, pavement or pathway or the surface thereof, and (c) whether it can be said to have become part of the fabric of the road, pavement or pathway.
This article, written in partnership with Nicholas Hancox was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.