The road to clarity

May 2, 2013

The Court of Appeal has delivered important guidance on the status of the Code of Practice, "Well Maintained Highways”. Mark Fowles and Lorna Herring analyse the judgment and its implications for local authorities.

In TR v Devon County Council [2013] EWCA Civ 418, TR, the driver of a Land Rover, was overtaking a slower moving vehicle on a rural road in Devon, when his car left the road to the nearside. His passenger was seriously injured.

The passenger sued TR. That claim was settled by an admission of negligence by TR's insurers. Subsequently insurers made a claim against the highways authority alleging that the effective state of the offside of the road was what had caused TR to lose control of his vehicle.

The High Court was critical of Devon, and in particular, in respect of Devon’s departure from the Code of Practice, Well Maintained Highways as to its inspection frequency. Because Devon had not gone through a written risk assessment process in this regard, she took the view that Devon could not succeed in its statutory defence.

The decision

A number of issues arose for consideration:

Was there a breach of section 41 of the Highways Act 1980 and was the accident caused by that breach?
Had Devon made out the statutory defence under section 58 of the Act?
Was there any contributory negligence on the part of TR?

Section 41: breach and cause

The Court of Appeal felt that there was sufficient evidence to support the judge's finding which was implicit in several paragraphs of her judgment that the road was, in places, dangerous. On the facts of this case the reason why the defect was a category one was quite plainly because drivers might be put in danger by being thrown off course where the edge of the road had been overridden.

On the facts found by the judge TR had crossed into the rutted area somewhere before the point of maximum intrusion of the rut into the carriageway. Because he was travelling forwards at about 45 miles per hour he then passed into the widest area of the rut which was, on any view, a dangerous part of the road. The judge's clear finding which was inevitable on the evidence was that it was the rut which caused him to lose control and caused the accident. That was enough to demonstrate a breach of Section 41. In any event the judge clearly found that the place described at the point of entry into the rut was itself dangerous.

Although one would expect drivers generally to stay within the carriageway and not to cross the white line at the edge of the road, and those acting with proper care would ordinarily do so, the whole of the tarmac was self-evidently space which might be crossed by a vehicle travelling in either direction.

Statutory defence

The principle issue was whether Devon had inspected the road sufficiently often. Devon's practice was to inspect at six monthly intervals in respect of this type of road. The judge found this was not enough to discharge the burden laid on Devon by section 58 to show that it had taken such care as was in normal circumstances enough to avoid the highway being in a dangerous condition. 'Well Maintained Highways' dealt with frequency of inspections. It suggested that the regime for frequency should be based upon listed factors including category of road, traffic use, incident and inspection history. Frequency of inspection is suggested by the Code in respect of certain categories of road. The third category in the Code is described as 'secondary distributor' roads. Devon treated the road in this case as a secondary distributor. Inspection frequency of such roads according to the Code was one month.

Devon in fact had a more flexible and subtle division, into ten categories rather than the five used by the Code. Devon's inspection frequency for this road was six months.

The judge found that Devon had failed to make out the statutory defence because it had not justified its departure from the inspection intervals recommended in the Code. She concluded that where authorities decided to depart from the Code of Practice that it was essential for these departures to be identified together with the reasoning for such differences. She found on the evidence that there was no record of any consideration or review of the reason for departure and no risk assessment.

The Court of Appeal robustly disagreed describing the judge’s approach as ‘erroneous’. Her approach amounted to treating the Code as a mandatory standard that had to be adhered to unless there was a positive reason to depart from it. They pointed out that it was important not to overrate the importance of the Code. It was not statutory, but no more than evidence of good practice. Authorities had to exercise their own judgement. The advice to give explicit reasons for adopting different policies was wise given the exposure of highway authorities to litigation, but it was advice not a rule. It could not amount to a rule that it would itself be want of reasonable care to adopt a different inspection interval unless some particular process of reasoning was passed through and set out somewhere in writing.

In this context the Court of Appeal was critical of the judge in another of her findings. Devon had produced evidence from other authorities of comparable departures from the Code in respect of local distributor roads. The judge had dismissed this evidence as being of little or no assistance. She did so because save for one authority she had no evidence of the reason why the authorities had departed from the Code. That was a legitimate conclusion if it was correct that the Code provided a mandatory norm, but it did not. At the very least, the evidence of the practice of other authorities pointed towards a respectably held view amongst professionals charged with highway maintenance that six-monthly inspections of a distributor road was a reasonable response to the duty to maintain. On the Bolan principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.

Although the evidence did not disclose what discussions or, as the judge put it, 'study', preceded the adoption by Devon of its intervals it did disclose an exercise which Devon had undertaken in 2004 comparing its road maintenance manual with the 2001 Code of Practice. That demonstrated at least that Devon had conducted the exercise of asking itself whether its manual differed from the Code and if it ought to have altered its practice. The judge felt this was far short of the risk assessment that was required but this was too exacting a requirement which followed from her approach to the Code generally, since that led her to hold that a departure from the Code would constitute a lack of reasonable care unless it was predicated on a reasoned and specific assessment.

For this reason the judge's finding that Devon's adoption of an inspection regime of six months on distributor roads generally was a want of reasonable care could not stand since it was based on an erroneous approach to the Code.

Unfortunately, on the facts, the judge had been entitled to hold that this particular road called for greater frequency of inspection given its history of defects prior to the accident. Accordingly, despite the flawed approach to Devon's policy it was clear that there was sufficient evidence to justify the judge's conclusion that the road needed inspection at shorter intervals than six months and there was no reason to interfere with it. As a result, despite winning the statutory defence argument on the law, the county council lost it on these particular facts. The clear message to authorities is to make sure that where a road is throwing up a higher than usual number of defects , that the inspection frequency is reconsidered.

Contributory negligence

Devon did win the argument on contributory negligence. It was a little surprising that the judge found no negligence at all on the part of the driver. He had been at fault in entering the rut which, even if it had water in it, was there to be seen. Even if TR had not known the road, which he did, the contours were obvious. It can only have been inadvertence on the part of TR that he did not see the defect and avoid it. There was plenty of room to overtake. There was no question of the car being overtaken doing anything restricting the availability of the whole of the space to the Land Rover. They assessed his fault at 50%.

Highway authorities were understandably concerned by the judge’s approach in TR. They will be relieved by this; this is the first judgment from an appeal court giving guidance on the Code’s role in litigation and the practical approach taken by the Court of Appeal.

The Court of Appeal have clarified that the Code is guidance and not mandatory. It does not place a duty upon the highway authority to carry out a risk assessment if they depart from the Code.

Mark Fowles is a partner and Lorna Herring is a solicitor at Browne Jacobson. They acted for Devon County Council and instructed Lord Faulks QC and Angus Piper of 1 Chancery Lane. Mark can be contacted on 01392 288 328 or by This email address is being protected from spambots. You need JavaScript enabled to view it..