A caselaw update on highways claims under the Highways Act 1980
March 3, 2021
James Kinsey considers recent caselaw on highways claims under the Highways Act 1980.
Resist an overconfident reliance on Gautret / McGeown in cases involving the HA 1980 and the OLA: Barlow v Wigan MBC  EWCA Civ 696
Arguably the obiter comments of LJ Bean in Barlow are the most interesting passages of the CA decision. Bean LJ clarified the principle arising from Gautret v Egerton (1867) LR 2 CP 371 restated in McGeown v Northern Ireland Housing Executive  1 AC 233. The Gautret and McGeown principle appeared to be that a user of a public right of way is owed no duty of care at common law or under the Occupier Liability Acts by the landowner to repair or maintain the land in a safe condition (a duty would arise in cases of positive dangerous acts eg: the digging of a pit in a highway).
According to Bean LJ the true ratio of Gautret and McGeown was that if a person is only lawfully on a defendant’s land because of the existence of a public right of way then there is no duty of care owed by the landowner either at common law (save in respect of dangerous acts) or under the Occupiers’ Liability Acts.
Local authorities may therefore be concerned that where a person is on land pursuant to a right of way and also in some other capacity then that person might be owed a duty of care as an occupier. For example, if there is implied permission given to an invitee by the landowner to travel on a right of way for example in a public park there might be a duty of care owed by the landowner as occupier.
Be quick to challenge unreliable evidence of defects and the true cause of an accident: Nash v Hertfordshire County Council  EWHC 3247
It seems the old-fashioned use of rulers as devices to measure defects is still preferred by courts! In Nash the claimant failed to prove there was a dangerous defect in the highway as the defects had not been measured accurately and with certainty. The use of mobile phone and human hands to measure the defect were unsurprisingly not sufficient to provide reliable evidence of the dimensions or conditions of the pothole such that HHJ Lickley QC could find that there was a real source of danger.
Furthermore, even where a local authority admits there is an actionable defect there is often fertile ground in challenging the claimant’s account of the accident mechanics. In particular, local authorities might have an eye to the claimant’s first blush accounts of the accident in police reports and medical records. In Nash the claimant had failed to mention the potholes to an attending police officer at the scene, on the journey from the scene to the hospital and also for a time at the hospital. The absence of contemporaneous complaints of potholes led to the rejection of his account of the cause of the accident.
A s.58 defence will fail if the system of maintenance and inspection has not been applied correctly: Crosby v Wakefield MDC  1 WLUK 2020
The devil is in the detail of records of highway inspections. Highway Inspectors should produce evidence that they have measured defects in a road surface during inspections. If a pothole is recorded as a category 1 or 2 defect or whatever the case may be there should be proof of the measurements that were taken. It was not enough for an inspector to say in Crosby that he must have measured the defect because it had been placed in a particular category. In the absence of numerical evidence HHJ Belcher found that the highway authority had not proved that it had applied the system of maintenance and inspection set out in its policy and that it had taken reasonable care to secure the highway was not dangerous for traffic.
Be wary of unduly prescriptive approaches to risk management: Garwell v North Yorkshire CC  11 WLUK 753
Garwell is a useful reminder that an unduly prescriptive adherence to the contents of an inspection and maintenance manual when assessing a defect in the highway may be the undoing for a highway authority when. In Garwell the depth of a depression was below the tolerance for an actionable defect contained within the manual. However, it was found that the highway authority’s approach to risk management had been unduly prescriptive and had failed to take into account a real source of foreseeable danger to road users. In assessing the danger Recorder Barnett took into account much more than the depth and size of the depression including the description of the accident, a complaint by the public, and marks on the road from vehicles bottoming out having driven over the depression.
James Kinsey is a member of the Personal Injury: Defence team at Exchange Chambers. He has a growing defence practice covering road traffic accidents, employer’s liability, public liability and Highways Act 1980 cases.