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Poorly maintained roads. What are the chances of a successful claim?

The poor condition of local roads and the increase in the number of potholes have seen major coverage over recent months with Local authorities warning that 2017 could represent a critical year for potholes with analysis estimating that the repair bill could reach £14 billion within two years.

The Local Government Association (LGA), representing 370 councils in England and Wales has reported steadily growing repair figures and believes that the country faces a “roads crisis”. Recent statistics from the Asphalt Industry Alliance (AIA) state that the total has risen from £9.8 billion in 2012 to £11.8bn last year in 2016, projected to rise to £14bn by 2019. The study also found that almost a fifth of roads were in “poor” condition.

So where do you stand if you have an accident as a result of a poorly maintained road? Is the fact that the Local Government has been subject to reduced funding a defence?

A few years ago, the Court of Appeal issued a key ruling on highway inspections and the budgetary pressures councils are under which is still relevant today.  In the case of Wilkinson v City of York it was ruled that if inspection of a highway was inadequate due to budget issues, then the highway authority had not taken the care required to ensure that it was not dangerous.

The facts of the case

The claimant fell from her motorcycle in May 2006 when the front wheel hit a pothole in the road. She brought a damages claim. The claim centred on the council’s statutory defence under section 58 of the Highways Act 1980.

The council argues that the prescribed frequency of inspection under the council’s code was annual. The council inspected the road approximately ten months prior to the accident and no defect was recorded. The claimant’s case was that the frequency of inspection was inadequate because the national code of practice suggested the road was of a type that ought to have been inspected every three months. The council’s case was that the reduced number of inspections from the national code was a matter of limited manpower and financial resources and was not based on any risk assessment as the national code suggested it ought to be.

Following subsequent appeals and further hearings the claimant’s case was upheld.

At the Court of Appeal, it accepted that the national code was not a document that carried the force of law. However, on the evidence given at trial (which suggested reasonably heavy pedestrian traffic) it was open to the District Judge to conclude than an annual system of inspection was inadequate. Financial considerations were not a factor when looking at whether the council had done what “was reasonably required”.

The intended purpose of Section 58 was to afford a defence to a claim for damages brought against a highway authority if it was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users, not a licence to decide that it was preferable to allocate its resources in other directions because other needs were more pressing.
It goes without saying that as a general rule a highway will be maintained in a better condition the more frequently it is inspected.

Highway authorities should ensure that their inspection frequencies are set following a cogent process of risk assessment based on locality, traffic levels and footfall and other relevant factors such that any deviation from the national code of guidance is readily explicable and that blaming budget restraints will not alleviate councils of their overall legal responsibilities.

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