Pothole claims and the highway authority’s duty to respond to complaints

It is well known amongst injury claims solicitors that bringing a successful tripping or slipping claim can be difficult.  The prospects of success can be low due to the lack of evidence which may be available at the outset.  In addition, once enquiries into liability have been carried out by highway authorities, it is often the case that there is evidence to show that a  reasonable system of inspection and repair is in place and has been adhered to; and the highway authority can then rely on the defence provided by section 58 of the Highways Act 1980 .  It then becomes essential for the claimant’s solicitors to challenge the adequacy of the system of inspection and repair to rebut the defence in order to succeed.

In most cases the question of the frequency of routine inspections or the adequacy of the repairs becomes pertinent.  However, in the recent case of Crawley –v- Barnsley Metropolitan Borough Council [2017] EWCA Civ 36, before the Court of Appeal, the key issue revolved around the council’s system of responding to reported defects during the period between routine inspections in minor roads.

This case arose after Mr Crawley, suffered an injury to his ankle as a result of falling into a pothole and pursued a claim against the highway authority.

The facts are that on Friday 27 January 2012, at 4:20pm a member of the public made a telephone call to the council to report the presence of deep potholes on Hill Top Avenue, Barnsley. This call was logged on the council’s computer system and forwarded to the highway inspectors.  On Saturday 28 January, Mr Crawley was out jogging in the evening, when he fell into the pothole and injured his ankle.  On Monday morning 30 January, the council’s highway inspector read the message left from Friday afternoon and hastily went out to inspect the defect.  He raised an urgent works order for the defect to be repaired within 24 hours; and by Tuesday 31 January the council’s workmen had filled and repaired the pothole.

Mr Crawley brought a claim for compensation for injuries due to the council’s negligence and breach of statutory duty alleging the council should have repaired the defect before the evening on 28 January.  At court, in the first instance, Mr Crawley’s case was dismissed by a district judge.  Unhappy with this outcome, Mr Crawley appealed to a circuit judge. This appeal was allowed and the circuit judge found that the council had failed to establish a defence under section 58 of the Highways Act.  The judge found that  if a pothole complaint was made by a member of the public on Monday to Thursday, it would be considered by a highway inspector the following day, but if a complaint was made on a Friday it would suffer a delay until Monday (although a Friday complaint by the emergency services would be dealt with on Saturday)..  On this basis, if it was reasonable to deal with the complaints on the next day if reported on Monday to Thursday, there was no justification other than a resource–based justification, for dealing with complaints made on Friday any differently.

The leading case of Wilkinson v City of York Council [2011]EWCA CIV 2011 was cited as authority that shortage of resources is irrelevant when considering the adequacy of measures taken to secure the safety of the highway.

The council aggrieved by this decision took the matter to the Court of Appeal.  The council’s ground of appeal was that the district judge, at first instance was entitled to find as a matter of law that the council had established the statutory defence set out in section 58 of the Highways Act.  They submitted, that the council had a perfectly satisfactory system in place, which included inspecting at proper intervals, dealing with reported defects promptly and taking appropriate action.  They contended that they did all that was required to establish a defence under section 58.

On behalf of Mr Crawley, the appeal was resisted and it was submitted that the council should have had in place an effective system of evaluating and responding to reports of serious road defects.  It was unacceptable for the council to do nothing until Monday.  The council’s overall system was deficient and therefore the council could not have a defence under section 58 of the Highways Act.

Lord Justice Jackson, who was in the minority in the court of Appeal, stated that section 58 requires the court to have regard to “all the circumstances”.  Whilst he readily accepted that the lack of resources was not a defence, on the other hand, the fact that most people do not work at weekends is a relevant circumstance, which the courts cannot ignore.  In his view, a system whereby reported defects are inspected on the next working day was not a perfect one, but in his view it was reasonable.  The district judge had concluded that the council 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.”  In his view the district judge was entitled to reach the conclusion which he did.

Lord Justice Briggs reached the opposite conclusion as in his judgment the council’s system suffered from the built–in flaw that reports of potentially serious defects would not be evaluated at all by someone with the requisite skill out of working hours, unless reported by a member of the emergency services.  Therefore the system failed the section 58 test. Lord Justice Irwin agreed with the reasoning of Lord Justice Briggs and also stated that there must be some means of responding quickly to complaints from the public of serious of dangerous defects in the road.  The appeal was dismissed.

The outcome of this case clearly shows that there may be a more onerous duty on highway authorities than previously understood.  It will not be sufficient to prove that they had a reasonable system of inspection and repair in place, if there are inadequacies in the system of responding to reports of defects and if this is the case the section 58 defence is likely to fail.  This is of course, good news for those injured by dangerous highway defects, whose solicitors who would do well to evaluate the response to reports of defects, whilst considering the highway authorities’ system as a whole.

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