Over the last couple of weeks we have seen adverse weather conditions all over the UK with snow turning into rain resulting in more flooding which the majority of us experienced before Christmas.
As a road user you may have noticed the affect of the weather on the road conditions. With extreme weather conditions the road surface becomes damaged and potholes start to appear.
The issue of potholes is a problem for both vehicle users and pedestrians and whether you drive over a pothole and it causes damage to your vehicle and potential whiplash, or whether as a pedestrian you trip and fall.
Under the section 41A Highways Act 1980 the highways authorities are under a duty to maintain the highways at a public expense and to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.
The key wording of the legislation is “reasonably practicable” as this means that it is down to the highways authority to abide by what they believe is reasonable. You may then question what is reasonable but unfortunately there is no guidance within the legislation but is a question of fact and for the Courts to decide. As there is no guidance of reasonable this results in varied decisions in Court.
In addition to the problems raised by the wording of the legislation and the lack of guidance under the Highways Act 1980 the highways authority has a special defence known more commonly as the “Section 58 Defence”. The Section 58 Defence states that when a claim is brought against the highway authority for their failure to maintain the highway it is a defence to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.
Unlike in Section 41, the Section 58 defence does provide some guidance as to the reasonable steps in which a highways authority must take in order to discharge them for liability of a potential claim. The guidance provided is as follows:
(2)For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—
(a) The character of the highway, and the traffic which was reasonably to be expected to use it;
(b) The standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) The state of repair in which a reasonable person would have expected to find the highway;
(d) Whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e) Where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
As you will see the section 58 defence provides a wide range of factors to consider and therefore it can bring about difficulties when bringing a claim.
With the forecast set to be one of the coldest February’s on record it is likely that claims brought about by potholes are due to rise so if you have been involved in an accident caused by a pothole please give us a call where we can give you professional, friendly and honest advice by our real lawyers.
