]This case looks at the question of repair under the Highways Act 1980, in particular, what a Claimant must prove to establish a breach of duty, the considerations to be taken into account under Section 53 and the importance of the Codes of Practice for Highway Maintenance Management. A link to the Codes of Practice is contained below.

THE FACTS
The Claimant had been cycling along Whitby Drive but had fallen off her bicycle after her front wheel hit a pothole. She suffered a fractured chin and other injuries. Under the Council’s highway maintenance scheme, Whitby Drive was in a category of highways inspected once a year. However, under the national code of practice for the maintenance of highways, it potentially fell within a category where the recommended inspection frequency was three months.

THE KEY FINDINGS
The Defendant argued that the burden was on the Claimant to show that the pothole had arisen prior to the latest date when the authority ought to reasonably have inspected the road and that the local authority had been negligent in some way. Relying on Lord Denning’s Judgement in the case of  Griffiths –v- Liverpool Corporation () in particular paragraphs 390- 391 which state:-

[Section 58 of the 1980 Act] does not in my opinion make proof of lack of reasonable care on the part of a highway authority a necessary element in the cause of action of a plaintiff who has been injured by danger on the highway. What it does is to enable the highway authority to rely upon the fact that it has taken reasonable care as a defence—the onus of establishing this resting upon it.

The Defendant’s argument was rejected and it was held that there was “[a] need for the claimant to show that the danger was due to a failure to maintain in the absolute sense (explained by Lord Denning in Haydon v Kent CC  [1987] Q.B 374) but no more than that ” (Para 38).

Therefore a Claimant will not need to prove that there was a negligent breach of duty to maintain, merely that there was a breach of the duty to maintain.

On the issue of whether the Defendant could rely on Section 58, it was stated that the test was an objective test based upon risk. Although Parliament had included manpower resources as a consideration in other parts of the Act, such considerations did not feature in Section 58. Therefore arguments based upon budgetary restraints should not be considered when determining whether a local authority had done what was reasonably required to secure that part of the highway, to which the action relates, was not dangerous for traffic.

In deciding whether the Council had taken reasonable care the Court considered whether they had a policy of inspection which complied with the recommendations contained in The Codes of Practice for the Maintenance of Highways. Although it was highlighted that the Code is not a statutory document, nor is it mandatory, the Code does state at paragraph R 7.1, any variations in policies and practice from that identified by the Code should be derived following a risk assessment and it was held that budgetary considerations could not be used to justify deviation from the Code.

WHERE TO FIND THE CASE
Access the full judgment at  http://www.bailii.org/ew/cases/EWCA/Civ/2011/207.html

WHERE TO FIND THE CODES OF PRACTICE
Access The Code of practice for Highway Maintenance Management at
http://www.ukroadsliaisongroup.org/en/utilities/document-summary.cfm?docid=C7214A5B-66E1-4994-AA7FBAC360DC5CC7

RECENT CASES FOLLOWING THIS JUDGEMENT
(1) AC, (2) DC, (3) TR   v  Devon County Council (2012) EWHC 796 (QB)
Access the full judgment at:  http://www.bailii.org/ew/cases/EWHC/QB/2012/796.html