Section 58 defences and reactive systems

The importance of a Section 58 Defence in highways claims is well recognised and its potential impact upon the outcome of claims arising from accidents on the highway cannot be underestimated.

The burden of proof when raising a Section 58 Defence shifts to a defendant, which must show that it has taken such care, as in all the circumstances was reasonably required, to secure that a highway was not dangerous for traffic. Effectively therefore, a defendant needs to establish that it operated a reasonable system of inspection and maintenance.

Local authorities will have systems in place for the inspection and maintenance of adopted highways. If reasonable and adhered to, these scheduled systems should assist a defendant local authority in proving that it had an appropriate Section 58 Defence.

However, there will inevitably also be reactive systems in place to compliment any scheduled system and these too will be taken into account when considering any Section 58 Defence.

This was illustrated in the case of DH v Blaenau Gwent County Borough Council, in which Dolmans represented the Defendant Local Authority.

Background and allegations

The Claimant alleged that he was cycling along the carriageway at 5:30am when the front wheel of his bicycle entered a pothole, causing him to fall from his bicycle and sustain personal injuries. The Claimant alleged that the Defendant Local Authority was negligent and/or in breach of the Highways Act 1980. In addition, the Claimant pleaded nuisance.

Although it was dark at the time of his alleged accident, no allegations in relation to lighting were pleaded.

The Claimant’s specific allegations included, however, a failure to inspect or to note the alleged defect for repair and a failure to make safe, guard or warn of the alleged defect.

Claimant’s claim and caselaw

It is useful at this juncture to consider a summary of the relevant caselaw that potentially applied in this matter and is frequently relied upon in other similar highway matters.

The Claimant’s claim was brought primarily as a breach of Section 41 of the Highways Act 1980, being the duty to maintain the public highway. It was argued that allegations of negligence in the alternative did not apply, as the Highways Act 1980 duty subsumed any common law duties owed by a Highway Authority in respect highway maintenance. It was also argued that allegations of nuisance added nothing and the Highway Authority’s highway duty comes no higher than under the Highways Act 1980.

Before breach was considered, however, it was necessary for the Claimant to establish causation: exactly what caused the alleged accident. It is not sufficient to allege that there were areas of the highway that required repair. It was argued that the Claimant must establish the exact location of the accident-causing defect, otherwise the claim fails at that primary stage. See Court of Appeal in James v Preseli DC [1993] PIQR P114.

In terms of the Defendant Local Authority’s Section 41 duty, the Court was asked to consider the case of Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA CIV 1094, where the Court of Appeal reviewed the highways caselaw over the last thirty plus years to extract the applicable principles informing the approach to setting the Section 41 duty, despite itself being an Occupiers’ Liability case.

Elias LJ made the following observations upon the authority’s approach to foreseeability of risk and actionable danger:

“It is important to emphasise, therefore, that although the test is put by Steyn LJ in terms of reasonable foreseeability of harm, this does not mean that any foreseeable risk is sufficient. The state of affairs may pose a risk which is more than fanciful and yet does not attract liability if the danger is not eliminated. The observations of Lloyd LJ in James v Preseli Pembrokeshire District Council [1993] P.I.Q.R. P114, a case which applied the test in Mills, are pertinent: “In one sense, it is reasonably foreseeable that any defect in the highway, however slight, may cause an injury. But that is not the test of what is meant by ‘dangerous’ in this context. It must be the sort of danger which an authority may reasonably be expected to guard against”.

Lord Justice Ralph Gibson to similar effect noted that the test of foresight of harm is liable to result in too onerous a standard of care: “… it has been established by the decisions of this court that the standard of care imposed by the law upon highway authorities is not to remove or repair all and any defects arising from failure to maintain, such as differences in level or gaps between paving stones, which might foreseeably cause a person using the carriageway or footpath to fall and suffer injury, but only those which are properly to be characterised as causing danger to pedestrians. There is, I think, an apparent element of circularity in some of the formulations of duty or breach of duty which have been advanced. Thus the test of dangerousness is one of reasonable foresight of harm to users of the highway. But in drawing the inference of dangerousness the court must not set too high a standard. Any defect, if its uncorrected presence is to impose a liability, must therefore be such that failure to repair shows a breach of duty …”.

And in relation to Eady J’s approach to the Mills v Barnsley principles in the case of Galloway v LB of Richmond Upon Thames (20 Feb 2003), Elias LJ stated:

“… in which he said that Mills had adopted a two-stage test for determining whether an un-remedied state of affairs constituted a breach of duty, namely whether there was foreseeability of harm and, as a second stage, whether a reasonable person would regard it as presenting a real source of danger … The authorities suggest that ultimately it is the test of reasonable foreseeability but recognising the particular meaning which that concept has in this context. The risk is reasonably foreseeable only where there is a real source of danger which a reasonable person would recognise as obliging the occupier to take remedial action. A visitor is reasonably safe notwithstanding that there may be visible minor defects on the road which carry a foreseeable risk of causing an accident and injury”.

And concluded:

“The judge did not apply the foreseeability test in the appropriate way and that this amounts to a misdirection. There is no recognition in the judgment that not all foreseeable risks give rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy”.

The Defendant Local Authority submitted, therefore, that the above principles of a ‘practical and realistic approach’ to foreseeability apply not only to whether it is reasonable for a highway authority to repair or not, but also to the timeframe for repairs.

Section 58(1) of the Highways Act 1980 provides for a local authority to have “taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the actions relate was not dangerous for traffic”.

For the purposes of considering any Section 58(1) Defence, Section 58(2) states that the Court shall have regard to the matters therein listed. Hence, could the Defendant Local Authority establish that it operated a reasonable system of inspection and maintenance?

Claimant’s evidence

The Claimant sought to rely on photographs taken by an individual who had not provided a witness statement, and the Claimant could only speculate from these as to the depth of the alleged pothole. The Defendant Local Authority disputed that the said photographs accurately assessed the depth of the pothole in any event.

The Claimant relied upon witness evidence by a colleague who did not witness the accident, but claimed to have arrived at the location following the Claimant’s alleged accident. He spoke with various other people, but, again, no witness statements were forthcoming from these other people. According to the Claimant’s witness, these had told him that the Defendant Local Authority had attended the relevant location to undertake repairs some time prior to the Claimant’s alleged accident. The Defendant Local Authority did not accept the accuracy of this hearsay account and maintained that that the documents told a different story, which will be considered further below.

Defendant local authority’s evidence

The last scheduled inspection of the carriageway was undertaken some four months prior to the date of the Claimant’s alleged accident. Although some defects were noted for repair, none were identified at the location of the Claimant’s alleged accident.

The carriageway was scheduled for inspection by foot on a six monthly basis, although there was also a reactive system in place.

Indeed, the Defendant Local Authority had further inspected the carriageway at the location of the Claimant’s alleged accident at 2:15pm two days prior to the Claimant’s alleged accident, following a complaint made a day earlier. At the time of such inspection, two potholes and a manhole cover that required adjustment were noted at or near to the location of the accident. At that time, the pothole was assessed to be bordering upon the relevant intervention level. As a matter of prudence therefore, the pothole was marked for repair within 48 hours, being the appropriate timescale for repair of such defects. The Defendant Local Authority maintained that the alleged defect would not have warranted a 2 hour repair, as this was reserved for high danger situations.

The Claimant did not allege that the repair should have been completed at a time earlier than the accident occurred. The Defendant Local Authority argued that it could not reasonably be said that this was a defect warranting a shorter repair. The alleged pothole was only at or near to the relevant intervention level. The said pothole was in a carriageway, not a footway, nor near any crossing points and not a designated cycle route. It was very near to the centre of the carriageway and not even in a likely cycling line of travel.

The Defendant Local Authority’s documentation indicated that the said pothole was repaired between 8:00am and 8:30am on the morning of the Claimant’s alleged accident, so within the 48 hour period since being noted for repair. Readers are reminded that the Claimant’s alleged accident occurred at 5:30am, which was, therefore, also still within the 48 hour period for repairs. The Claimant also accepted that the said pothole was repaired shortly after his alleged accident.

The Defendant Local Authority submitted that the relevant documents demonstrated that a system properly and reasonably operated. As such, it was argued that there was no breach of duty.

In addition, the Defendant Local Authority argued that the various and precisely timed repair documents cast doubt upon the Claimant’s hearsay evidence referred to above. There had been no repairs undertaken immediately prior to the Claimant’s alleged accident. The Claimant’s said hearsay evidence inferred that repair of the alleged defect had been missed shortly before the Claimant’s alleged accident, which, according to the relevant documents, was clearly incorrect. As such, it was argued that the Claimant’s claim on breach of duty was misconceived.

Defendant local authority’s submissions and summary

The Claimant was put to strict proof as to the circumstances and exact cause of his alleged accident.

If the Claimant was able to establish the above, then it was not disputed that the alleged pothole represented an actionable defect.

The Defendant Local Authority argued, however, that it was availed of a Section 58 Defence for the following reasons:

(1) It had a reasonable system of inspection by foot for this unclassified carriageway.

(2) The Defendant Local Authority properly marked the defect for a 48 hour repair in accordance with policy within two days before the Claimant’s alleged accident and there was no evidence to suggest that the alleged defect was present some four months earlier at the time of the Defendant Local Authority’s previous scheduled inspection.

(3) The alleged defect was then repaired 42 hours after notification, within the 48 hour period, and the Claimant had had his accident 39 hours post inspection, again within the 48 hour repair period.

(4) The Claimant had not alleged that such a period of repair was or would represent a breach. The Defendant Local Authority argued that such an allegation, if made, would have been unsustainable.

(5) It was also noted that the alleged defect was paint marked for repair and that this was a reasonable/ proportionate response to such a defect on such a carriageway under a 48 hour repair order. It was also argued that the Claimant’s allegation that the Defendant Local Authority was required to install guards and/or signage would be to apply an unrealistic and impractical standard, which would be at odds with how local authorities respond to non-emergency repairs. Such carriageway defects are typically paint marked.

Judgment

The Trial Judge was satisfied that Claimant’s bicycle came into contact with a pothole towards the centre of the road and that the Claimant was cycling towards the centre of the road.

The Trial Judge was satisfied as to the cause of the Claimant’s alleged accident and there was no negligence on the Claimant’s part in cycling towards the centre of the road, especially given the time of day and lack of other traffic.

Although there was no accurate measurement of the precise depth of the alleged pothole, the Trial Judge found that the said pothole was at the appropriate intervention level and, therefore, was actionable.

Having established factual causation and dangerousness, the Trial Judge, therefore, had to give consideration to the Defendant Local Authority’s Section 58 Defence.

The Defendant Local Authority had a system of scheduled and reactive inspections in place and the Trial Judge referred to the same, including frequency and intervention levels. The Trial Judge indicated that the Defendant Local Authority’s system was reasonable and that categorisation of the relevant highway was also reasonable.

The Trial Judge was satisfied that the alleged pothole was not present/actionable at the time of the Defendant’s pre-accident scheduled inspection some four months prior to the date of the Claimant’s alleged accident and that there was no evidence of the said pothole being present at the time of the said inspection.

The Trial Judge went on to deal with the Defendant Local Authority’s reactive system in some detail, and it was apparent that this would be crucial to the outcome in this particular matter given the parties’ evidence regarding the alleged defect noted for repair within 48 hours prior to the date and time of the Claimant’s alleged accident.

The Trial Judge preferred the Defendant Local Authority’s evidence and documentation in this regard, finding that the appropriate repair was undertaken within the said 48 hour period and after the Claimant’s alleged accident that also occurred within the said 48 hour period.

The Trial Judge found that the alleged pothole did not require any earlier repair. A 2 hour repair for this pothole would place too onerous a burden upon the Defendant Local Authority.

The Defendant Local Authority’s reactive system was reasonable. The Trial Judge was satisfied that the Defendant Local Authority had taken such care, as in all the circumstances was reasonable, and the Defendant Local Authority had made out its Section 58 Defence. As such, the Trial Judge dismissed the Claimant’s claim.

Comment

Clearly, the Trial Judge was assisted by the Defendant Local Authority’s comprehensive and precisely timed repair documents in finding that the reactive system was reasonable and had been adhered to. This, in addition to the scheduled system of inspection and maintenance led the Trial Judge to find that the Defendant Local Authority had a successful Section 58 Defence.

This was a potentially high value claim, having been allocated to the Multi Track and listed for a liability-only trial initially. There was, however, no need to proceed to a quantum hearing and instruct various expert witnesses given disposal of the claim at the liability stage. The Claimant had also made a Part 36 liability offer on an 80/20 basis in his favour, which had been rejected. Given the dismissal of the Claimant’s claim, the Defendant Local Authority did not have to pay any damages and, therefore, made substantial costs savings in this particular matter.

Tom Danter is an Associate at Dolmans Solicitors.