Section 41 of the Highways Act 1980 places a duty on the local authority to maintain the highway. The effect of this, is that councils and local authorities, have a duty to keep public highways in a reasonable state of repair and free from dangerous defects. If the local authority fails in their duty and a member of the public is injured as a result, then that injured party may be able to bring a claim.
The cost of maintaining the highway is paid for out of the public purse, and therefore the local authority only have finite resources each year to pay for the reparation of defects that occur. Indeed, these restrictions were acknowledged in the case of Mills and Barnsley Metropolitan Borough Council 1992 where the Court of Appeal opined that…
“It is important that our law should not impose unreasonably high standards, otherwise scarce resources should be diverted from situations where maintenance and repair of the highway is more urgently needed.”
Where a claim is brought against the local authority, the local authority will often seek to rely on a statutory defence that is available to them under section 58 of the Highways Act 1980, if they can prove that they have taken all ‘such care as in all the circumstances was required to secure that part of the highway to which the action relates was not dangerous to the traffic.’
If the local authority seeks to rely on this defence to a claim against them, the Court will have to consider a number of different factors, one of which is whether that defect was dangerous enough at the time of the accident for the local authority to have repaired it, if they knew or ought to have known of its existence.
The Courts have not set a definitive size of what a defect must be before it can be considered dangerous, however, it is generally considered that if the defect is less than 25mm (or one inch) in depth, it may be more difficult to convince a Court that the defect was dangerous and required repair.
Indeed, the Courts have tended to shy away from deciding whether a defect is dangerous on the basis of its size alone. What is considered dangerous by the Court will depend on many factors and each case will be judged on its own individual merits.
For example, the threshold as to whether a defect is considered dangerous will depend on the location of it as much as its size. For instance a 30mm defect on a country road that is rarely used might not be considered dangerous, when the same defect on a busy thoroughfare probably might be. The amount of pedestrian and vehicular traffic on a highway will be at the forefront of the Court’s considerations.
The type of area will also be considered, so for example an area where there are an abundance of elderly people or young children will be a factor for the Court to consider given that these types of people maybe less careful or stable and have poorer eye sight than others.
The overall dimensions of the defect will also be considered. For instance a defect with a right angled edge will probably be considered more dangerous than one with a gradual slope, even though both defects may be the same height if measured at their deepest part.
The local authority will often argue that a defect was not as dangerous at the time of their last inspection and that it has increased in size between the last inspection and the time of the accident. In those circumstances it is helpful to have witnesses who can give evidence that the defect had been in a dangerous state for a long time.
With such a witness it may be possible to convince the Court that the defect may have been missed or not properly considered by the local authority during their last inspection. If witnesses are not readily available it is possible to get evidence from an engineer who can provide expert evidence as to whether a defect could have arisen or increased in size since the local authority’s last inspection.
If you have been injured through falling or tripping on a defective highway and you intend to bring a claim against the local authority, it is essential that photographs of the area are taken as soon after the accident as possible so that evidence of the size of the defect is recorded. If photographs are not taken, you may find that the local authority repairs the defect and it will then be difficult for a Court to ascertain whether the defect was dangerous at the time of the accident. Photographs should give an indication as to the depth, width, length and location of the defect.
If you have been injured due to a defective highway, whether that is whilst travelling on foot or whilst travelling in a vehicle, you may be able to bring a claim against the local authority.
At The Injury Lawyers we have an experienced team on hand to provide thorough and extensive legal advice in relation to Highways Act claims, together with the knowledge and experience to present a claim against the local authority.
