Highways: the ‘rule of thumb’

In the first in a series of articles Jack Harding delves into some of the lesser-known authorities relating to the Highway Authority’s duty to maintain the highway under the Highways Act 1980.

The duty to maintain the highway is of course now contained in section 41 of the Act, with the statutory defence in section 58. However, throughout the review of cases considered, reference will be made to the equivalent provisions (which were in large part identical) in the predecessor legislation under the Highways Act 1959 and the Highways (Miscellaneous Provisions) Act 1961. The focus will be on case law which has perhaps slipped through the net over the years, but from which principles can be derived to assist in the defence of claims against highway authorities today. As ever, since many of these cases are not reported, care should be taken to ensure that the Practice Direction on Citation of Authorities is complied with.

The ‘rule of thumb’

All highway authorities have a policy which provides the framework for routine safety inspections. Whereas the modern Well-Managed Highway Infrastructure Code of Practice (issued by the Chartered Institute of Highways and Transportation) now encourages the use of a risk-based approach to repairing defects without prescribing any form of intervention level, the reality in practice is that many authorities continue to deploy a ‘rule of thumb’, meaning a size of defect which will trigger different responses under their policy upon further investigation. For example, it may be that 40mm is used as the rule of thumb on carriageways, but that it is not an inflexible rule: a lower or higher measurement may be required depending on factors such as location, demographic of highway users in the area and so forth.

The test whether there has been a breach of the duty to maintain (under what is now section 41 of the Act) is well known. The claimant must prove that the highway is not reasonably passable for ordinary traffic of the neighbourhood without danger: see for example Jones v Rhondda Cynon Taff (2009) RTR 13.

What, then, if in the exercise of its own policy, a highway authority has concluded that steps need to be taken to repair the relevant defect. Is this a sound basis from which an inference or finding of dangerousness can be made?

As long ago as 1980, the Court of Appeal rejected this line of reasoning. In Lawman v The Mayor Alderman and Burgesses of the London Borough of Waltham Forest (1980) Lexis Citation 1421 the Claimant tripped over a protruding paving slab (some ¾ of an inch) and fell to the ground, fracturing her wrist.

Evidence was given at trial by the Defendant’s own inspector. He measured the protruding flag after the accident and classified it as an ‘emergency defect’. He also accepted in cross examination that a defect of the size that the claimant had tripped on required ‘urgent’ repair.

The Court of Appeal rejected the argument that this evidence led inexorably to a finding of dangerousness in the sense required by the authorities. It held that the word ‘urgent’ was just as capable of meaning that it required immediate repair before it deteriorated further. As to the formal classification of the defect as an ‘emergency’, Stephenson LJ stated as follows:

“I can attach little importance to the fact that Mr. Clayton regarded this as an emergency defect. It took on the character of an emergency defect from the fact that it had caused an accident, and I can well understand how any Street Inspector would report as an emergency defect any defect which had caused an accident and that it should be put right whether it was an ‘A’ defect or had not attained that elevated status. As I have indicated, in my judgment a defect can call for repair, even for urgent repair, and even if there has been no accident, without its having already become dangerous or likely to cause danger to persons walking along the pavement”

Some 11 years later, the Court of Appeal reached a similar conclusion in Brookman v London Borough of Bromley (1991) Lexis Citation 1722. The claimant tripped on the edge of the pavement, where it adjoined flagstone path leading to an elderly persons’ care home. She suffered serious injury as a result. The Court at first instance found that the Claimant had not proved that the difference in height was dangerous.

Under cross examination, the Defendant’s highways inspectors and municipal engineer had both accepted that the difference in height was a ‘hazard’. The Claimant appealed, arguing that the judge should have placed greater weight on these ‘admissions’ than he did. Ralph Gibson LJ disagreed:

“In my judgment however Mr Brown’s argument places more weight on the admissions of Mr Cooney and Mr Weaver and Mr Phillip than they can properly bear. They were not decisive in the sense of an admission of the fact in issue. They were no more than the acknowledgement, in my judgment, of the obvious, namely, that any defect in the smooth surface of the pavement may in fact constitute a hazard which may cause a pedestrian to turn her foot over or to trip, without that defect being such that a highway authority would be in breach of duty for failing, with knowledge of its presence, to repair it”

It is also the case that all three were dealing with what was a rule of thumb sensibly laid down by the council as to what sorts of defects should require such action to be taken and which need not necessarily require such action to be taken”

This is not an argument without modern application. In Griffiths v Gwynedd County Council (2016) RTR 15, the claimant was injured cycling along a mountain road in Wales. Part of the evidence was to the effect that the defect in question had fallen into the top ‘Category 1’ of the Defendant authority’s classification system, and should thereby be regarded as dangerous. Again, the Court of Appeal rejected this approach:

35.  As to the contention that on the council’s own approach the defect fell into Category 1 and was dangerous on that basis alone, the claimant faces two problems. First, the policy set by the council of when it will intervene and take action is not determinative of whether the test of dangerousness is satisfied. Thus, in Esdale v Dover DC [2010] EWCA Civ 409 , Smith LJ said at [12]:

“The test of whether, in all the circumstances, the council has taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the council sets itself as a matter of policy. The test to be applied is an objective one. The question, in effect, is: does the judge, as the embodiment of the reasonable person, think that the council has taken such steps as are reasonable, in all the circumstances, to keep the visitor—the claimant here—reasonably safe? What the council sets as a policy is certainly not determinative, although I would not go so far as to say that it is irrelevant. One can immediately see that the council’s policy could not be determinative. If the council had a policy that footpaths need not be repaired unless there was a defect of more than two inches, no one would suggest that, if that policy were followed, it could be said that the council had taken such care as was reasonable. Conversely, if the council wished to set a very rigorous policy in an attempt to provide a high standard for its visitors, it would not follow that the standard of what is reasonable must be set at the same level.”

36.  That was of course a case in relation to the duty of care under the Occupiers’ Liability Act 1957 but it seems to me a similar approach is appropriate for the question of danger under s.41 of the Highways Act .”

It is important to acknowledge dicta which runs against the grain of these authorities, however. In particular, in Dalton v Nottingham (2011) EWCA Civ 776, the Court of Appeal (seemingly without having either Lawman or Brookman cited it) also referred to Esdale:

“An immediate or imminent hazard is something which, in this context, presents a danger to users of the highway. In Esdale v Dover District Council [2010] EWCA Civ 409 , a case decided under the Occupiers Liability Act 1957 , it was held by this court that a failure by a council to comply with its own policy as to standards of safety is not determinative of the question whether the Council has in all the circumstances taken such steps as are reasonable to see that visitors are reasonably safe. This is obviously so, since the council’s policy may either fall below or exceed that which is reasonable. But where a council has an inspection and maintenance regime couched in terms of the identification of an immediate or imminent hazard, the identification by the council of a defect so defined is obviously powerful evidence of the presence of a danger against the risk of which the council can reasonably be expected to take steps to safeguard the public”

In light of the reasoning in Lawman and Brookman, this might be said to constitute an oversimplification. It is respectfully suggested that a more forensic approach is required, rather than one which attaches weight to the particular words or labels used by the authority.

Ultimately, as with so much in this area of the law, it is a matter of degree. The fact that the authority classifies a defect as ‘urgent’ or an ‘emergency’ or as a ‘hazard’ will not lead to the conclusion that the highway is dangerous. However, it is evidence that the court should take into account, alongside an array of other factors in reaching in its conclusion. 

Jack Harding is a barrister at Deka Chambers.