Highways Claims – Lack of inspections over the weekend undermined Section 58 Defence

In a rare defeat for a Highway Authority the Court of Appeal has held that their system of inspection of reported defects by the next working day was inadequate where it resulted in a delayed inspection of defects reported on a Friday: Crawley v. Barnsley MBC [2017] EWCA Civ 36

One Friday afternoon a member of the public reported the presence of a pothole in a minor road. The Defendant’s policy was that reported defects would be inspected the next working day. During the week this caused no issue. But where they were reported on a Friday that wold mean inspection would be delayed until Monday. As such, the inspector did not turn his attention to the report until Monday.

In the intervening period, the claimant tripped on the pothole whilst he was out jogging on the Saturday evening.
The court accepted that the defect was dangerous and as such amounted to a breach of Section 41. The issue was whether the Highway Authority had done enough to make out the Section 58 defence. The question was whether their system was a reasonable one.

At first instance the Judge found that the defence had been made out but this was dismissed on appeal. The Circuit Judge held that the delay of two days over the weekend was unreasonable. The only justification was lack of resource which was an irrelevant consideration (Wilkinson v City of York Council [2011] EWCA Civ 207).

The Court of Appeal dismissed the Highway Authority’s appeal. The report made on the Friday afternoon gave rise to a real risk that the defect presented an immediate or imminent hazard requiring immediate attention by way of rectification or cordoning off. Whilst lack of resources was not a defence, the court did have regard to the fact that there would be fewer people on duty at a weekend when considering the Section 58 defence. However, even with reduced staffing levels, there had to be a system in place that allowed for some means of quick response to complaints of serious or dangerous defects.

The decision was a close call, with Jackson LJ dissenting. He considered the system in place to be a reasonable one despite the delay of two days. It was not perfect but reasonability did not require an overnight response.

This case serves as a warning for councils that they may need to ensure that there is some policy in place for assessing those defects most likely to be dangerous whilst they are operating with reduced staffing levels. The same considerations will apply not only to weekends but also to holiday periods.

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