Prior to the Highways Act 1980, there were a number of Acts of Parliament covering the highways and the obligations on those responsible for looking after them. The Highways Act 1980 sought to consolidate the previous Acts into one single, comprehensive Act. The Highways Act 1980 is extremely detailed and many of its provisions are not relevant to the majority of those who suffer accidents on highways. However, some sections of the Act are very important. Section 41 places a duty on the relevant authority, normally the local council, to maintain public highways. This includes a duty to ensure that, so far as is reasonably practicable, safe passage along a highway is not endangered by snow or ice. If a highway authority does not maintain a highway in accordance with its duty and an individual is injured on the highway, for example by a pothole on the pavement, then that individual may be able to sue the highway authority for breaching its duty and causing him or her damage. This is known as an action against the highway authority for its breach of its statutory duty.
However, the Highways Act 1980 expressly gives the highway authority a special defence, under section 58, in any action against it for damages for non-repair of the highway. This defence may well be used against someone who wants to recover damages from the local council for injuries suffered as a result of a defective road. The highway authority can defend itself by proving that it 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” (which includes pedestrian traffic). This makes it clear that the highway authority does not have a duty to make sure there are absolutely no defects in the road. What it must do is take reasonable care to ensure that the road was not dangerous, and if it has taken reasonable care, it is not possible to recover damages against the highway authority, even if the road was in fact dangerous at the time the accident occurred.
For example, if a highway authority checks to see that a particular road is free from defects every week, and normally makes sure that it repairs any defects it spots within 1 or 2 days, the highway authority may well persuade the court that it has acted reasonably to ensure that the road is safe. Therefore, if the highway authority inspected a road on Monday and there was nothing wrong with it, but a defect was created in the highway by a vehicle on Tuesday which no-one reported, and then you trip over the defect and hurt yourself on Wednesday, you may not be able to recover anything against the council, because the council could say that it had a reasonable system of inspection and maintenance in place.
On the other hand, if the pavement outside your house has had a large pothole in it for several months which the council has done nothing about, and then you fall over the pothole and break your leg, you may well have an argument that the council has not acted reasonably to ensure that the pavement is safe. You could say that the council ought to have inspected the pavement regularly and should have repaired the defect earlier. If a court accepts that a council has not taken reasonable care, the defence provided to the highway authority under section 58 of the Highways Act 1980 will not apply, and your claim in damages could succeed.
To gain specialist advice in this tricky area, please consult one of the solicitors in our directory.