I assume it is not considered dangerous if less?

Cycling UK member (who requested anonymity) 

A Claims against highway authorities are difficult but not impossible to pursue. What is required to succeed in a claim against a highway authority for injuries or loss caused by a defect in a public highway is set out by the Court of Appeal in the case of Mills v Barnsley MBC.

1.Was the highway in such a condition that it was dangerous to traffic or pedestrians?

2.Was the dangerous condition created by the failure to maintain or repair the highway?

3.Did the injury result from the failure to repair?

If all of these questions are answered in favour of a claimant, there is then the need to consider whether or not the Highway Authority has a statutory defence under Section 58 of the Highways Act 1980. Essentially, if the highway authority has in operation at the time of the accident a reasonable system of inspection and repair, then the claim will fail. It is on this basis that the majority of such claims fail.

The first question relates to ‘dangerousness’. The existence of a defect does not mean that the highway authority is automatically in breach of its duty under the 1980 Act. Nor does the fact that an accident has happened. Only ‘dangerous’ defects are actionable. It is clear from case law that no measurement threshold exists for what amounts to a dangerous defect. This is a pure question of fact for the trial judge.

All highway authorities have set intervention criteria. Certain defects, depending upon their size, nature and location, will require remedial repair within certain periods of time. The Code of Practice for a Highway Maintenance Management sets out examples of various categories of defects.

The final consideration – ‘Was the dangerous defect created by the failure to maintain or repair the highway?’ – is rarely a problem for claimants. As long as the defect relates to the structure and fabric of the road as opposed to a transient defect then this can be answered in favour of the claimant.

Assuming all of the above questions are answered in favour of a claimant, consideration then has to be given to the statutory defence. In this case, West Sussex County Council had implemented a monthly inspection system. It would have been very difficult to mount a credible argument that the inspections were not frequent enough. If a defect does not require urgent repair, then usually the time-frame for repair is 28 days. In this case, the highway authority had identified the pothole for repair. This and the timing of the incident provided West Sussex County Council with a ‘reasonable system of inspection’ defence.

Unfortunately, claims against highway authorities for defects to roads and pavements are not viewed with much sympathy by trial judges and Appeal Courts. Austerity measures imposed upon public bodies have, in ‘borderline cases’, resulted in a further trend towards judicial discretion being exercised in favour of local authorities.

This does not mean that Cycling UK members should not attempt to pursue pothole-related claims, only that it can be difficult to succeed. It is easier to pursue a claim if dangerous defects have been reported – via fillthathole.org.uk.

Paul Kitson

​Partner from Slater and Gordon Lawyers