A bumpy ride ahead?

Local authorities and risk-taking contractors should take note of an important High Court decision on maintenance of the highway, writes Matthew Perkins.

The High Court decision in Thomas v Warwickshire County Council [2011] EWHC 772 (QB) comes at the worst possible time for cash-strapped local authorities. With the government announcing plans to freeze council tax and a 15% reduction in the road repair budget, the decision will inevitably lead to local authorities reclassifying and tightening their inspection criteria for road defects, placing further strain on already stretched civic budgets.

Facts

Mr Thomas, an experienced cyclist, sustained a serious head injury when he fell from his bike during a group ride. The evidence accepted at trial was that a spillage of concrete deposited up to 12 months earlier had hardened and formed a ridge in the middle of the carriageway measuring 1 metre in length, 10cm wide and 25mm in height. Mr Thomas was travelling at 25mph, riding two abreast with 20 other cyclists, just 15cm from the rear wheel of his fellow rider when he struck the ridge.

There were no records of previous accidents on the road and it was conceded that the council’s inspectors would have seen the ridge during their routine inspections. The Highways Authority information manager gave evidence that despite its height, the deposit was most likely not reported due to its position in the centre of the highway, away from normal tyre tracks.

Extent of maintenance obligations

The material question at trial was whether the concrete had become part of the fabric of the road and therefore within the council’s maintenance obligations under section 41 of the Highways Act 1980, and, if so, whether it represented a reasonably foreseeable danger to traffic using the road.

It is settled law that obstructions or surface-lying material do not constitute a part of the fabric and are not within the maintenance responsibilities of councils. However, in finding for the claimant the court held that: The spillage had become a permanent fixture and was therefore part of the fabric of the road.

Despite the council’s contention that cyclists are assumed to ride on the nearside of a road, and therefore the ridge did not constitute a danger, it was reasonable to assume cyclists would ride two or even three abreast and indeed reasonably foreseeable a cyclist in these circumstances would suffer an injury.

This decision clearly applies to all forms of two-wheeled travel, and motorbike riders will certainly take note, although it is significant that the claimant was held to be 60% contributory negligent due to the fact he was riding so closely behind the bike in front.

Systems of inspection and repair

Thomas further defines and extends what may constitute the surface of the highway. Local councils’ existing policies are now in the spotlight, and questions must be asked about whether they continue to constitute a reasonable system of inspection and repair, allowing them to benefit from the statutory defence under section 58 of the Highways Act. Highways inspectors must now not only identify potholes and cracks, but should also be on the lookout for spillages or deposits that may become permanent by bonding to holes and physical defects.

The Highways Agency estimates that £900m was spent on public roads in 2010 alone; however, notwithstanding the economic arguments, Wilkie J held this was not a case where the balance between the public and private interest was tipped unduly in favour of the individual, noting Lord Steyn’s comments in Mills v Barnsley NBC [1992] PIQR P291: “It is important that our tort law should not impose unreasonably high standards otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed.”

Broader implications

The cause of the concrete spillage was never found, but the most likely explanation was accepted as a spillage from a mobile concrete mixer. If the company responsible for the spillage had been identified, then the council would certainly have considered joining them into proceedings as a co-defendant. Contractors, particularly those working with substances capable of bonding to roads, will therefore need to take extra precautions to guard against spillages as the incentives for councils to investigate such spillages increase.

This decision will represent unwelcome news to small contractors in particular, coming shortly after the Health and Safety Executive’s construction division has announced a change in focus to tackle what it calls a ‘two-tier industry’, with smaller contractors being responsible for a disproportionate level of accidents. Visits to sites solely controlled by larger contractors are being scaled down, with a targeted approach to improve the safety record of smaller businesses being made. This could stretch as far as analysing how materials are transported to and from sites and whether that process poses risks to the public.

The decision in Thomas will ultimately lead to a greater financial burden upon local authorities. Whether in light of recent budgetary cuts Thomas achieves the sensible balance advocated by Lord Justice Steyn in Mills, remains to be seen.

Matthew Perkins is a solicitor in the personal injury team at national law firm Berrymans Lace Mawer LLP. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..