(1)In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) 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.
(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;
To try and explain this in layman terms – the local authority can easily defend your claim if they can prove that:
- they have a reasonable system of inspection and maintenance for the area where you fell;
- they can prove that they had no knowledge that the pothole that caused your injury existed;
- they can prove that the defect was not present at the time of the most recent inspection, or the inspection was very recent and maintenance has been scheduled to be carried out;
- they can prove that they have adhered to their inspection regime.
So if we pursue a claim and the council discloses reports to show that the pothole that caused your injury manifested itself in-between inspection periods, it could prove very difficult to win a claim. Sadly, the size of the defect isn’t necessarily taken in to account. The special defence that highways authorities can rely upon, as outlined above, is clear. So even if you tripped over an 8ft X 8ft beast of a pothole, if the inspection regime for that road is 12 months and it wasn’t there the last time it was inspected, say 8 months ago, and no one has reported this hole to the local authority, they will try and defend the claim.
The point of this article was to give you an insight in to the difficulties faced by people making a claim against the local authority, and to show you the regulations as to why. These claims are very hard to win. For us to assess a claim, we need you take plenty of photos, showing the depth and width of the defect with measurements, and some of the locus to show the area as well.
It’s also worth your time looking at Google Street View to see if the defect is present at the last time one of the Google cars took a snap of the area. You never know, this could show that a defect has been there for a very long time and could break a local authority defence…