Potholes galore!

Potholes 14396505 s 146x219John Collins reports on a Court of Appeal ruling in a case where a jogger injured himself in a pothole.

The case of Crawley v Barnsley MBC [2017] 1WLR 2329 may well have surprised both local authorities and those who follow the law reports. It strikes one as very much a decision on its own facts and typical of the numerous cases which these days clutter the Lexis reports.  If it does indeed state a matter of principle, it may be thought a singular advance on previous authorities.

The basic law is entirely clear, since by s.41 of the Highways Act 1980, the highway authority is under a duty to maintain the highway – and indeed that includes footpaths. However, that is subject to the defence under s.58. By that section, the highway authority is entitled to by way of defence to prove that it had 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.  Of course, the burden of proof was upon the local authority, but it has generally been recognised that if the authority could show that it had maintained a reasonable adherence to the guidance given to local authorities in a Code prepared principally by the Department of Transport, that would be sufficient to constitute a good defence to a claim in respect of a defect in the highway.

That having being said, the nature of the defence was to some extent limited, because as was held in Wilkinson v York City Council [2011] EWCA Civ 207, a local authority could not say that they were short of resources to maintain the highways. That was an irrelevant consideration and no defence.

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The facts of Crawley are simple. In Barnsley there is a residential street called Hill Top Avenue. The local authority had noted on its annual inspection in September 2011 that there were defects in the roadway and those were repaired in October 2011. On Friday 27th January 2012 a new pothole was apparent near the centre of Hill Top Avenue. There was nothing particularly unusual about the pothole, save that it was quite deep. Jackson LJ described it as not unlike the sort of potholes which do from time to time appear in roads during the winter months. At 4.20pm on that day, a member of the public telephoned the Council to tell them that there were “Deep potholes from Hill Top Avenue leading on to Wilford Road.” As might be expected on a Friday afternoon, nobody was available to take action upon such a message. On the evening of Saturday 28th January, Mr Crawley went out jogging and ran across Hill Top Avenue and fell as a result of stepping into the pothole and injured his left ankle. On the morning of Monday 30th January, Mr Stuart Macey, Barnsley’s patently conscientious highways inspector, read the message which had been recorded on Friday evening. He immediately went up to Hill Top Avenue, saw the pothole and sent a message to those responsible requiring it to be repaired within 24 hours. It was.

Mr Crawley claimed damages for negligence and breach of statutory duty under s. 41. That came before DJ Babbington, who held that although the pothole was dangerous and actionable, the council was entitled to rely on its defence under s. 58. Judge Robinson allowed the claimant’s appeal and held that the council had failed to establish its defence under s. 58. The council then appealed to the Court of Appeal. By a 2:1 majority the Court of Appeal upheld Judge Robinson’s decision.

Basically, the reasoning of the majority was that the evidence showed that out of normal working hours at weekends the council’s arrangements for responding to reports of highway defects by people other than the emergency services were that they were just logged on to await review by highway inspectors during the next period of working hours, whether or not the report was such as disclosed a real risk of the existence of an immediate or evident hazard. The duty of the council if it found that a defect was in that category was to give it immediate attention either by immediate repair or by it being rendered safe by immediately placing a notice or fencing or coning followed by a repair as soon as possible. Indeed Mr Macey, in evidence, had conceded that the defect required immediate attention and that was why he gave the instruction that he did.

The issue has turned upon whether the council was in breach of its obligations because it in effect had no one on duty to cover that kind of defect over the weekend. The majority held that it was: Jackson LJ dissented. However, all the members of the Court of Appeal appear to have accepted that to have on duty simply a skeleton staff over weekends and presumably public holidays would be sufficient. Barnsley Council had gone too far in failing to ensure that there was at least somebody available.

Indeed, one cannot help but feel that it was because Mr Macey was so conscientious that he was willing to take up immediately a single telephone message, go and inspect and then give directions for swift action that highlighted the failure of the council to take steps earlier. One knows from experience that even when a defect is reported to the local authority in most places, it is a week or maybe a month before anything is done about it. (It may be that Mr Macey acted so speedily because he was conscious that there had been a pre-existing defect in the road surface and he anticipated that that defect might have recurred.)

But is it reasonable to expect one of the smaller highways authorities to keep senior (and therefore more expensive if you are paying overtime) employees on duty through the weekend, just in case? Has the Court of Appeal tilted the balance too far? Section 58 surely sets the standard of what is reasonable in all the circumstances.

John Collins is a barrister at Zenith Chambers. This article first appeared on the set’s PI blog.