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Holly Clegg discusses The Court of Appeal on Potholes

Holly Clegg considers the recent case of Lee Crawley v Barnsley Metropolitan Borough Council. Councils must have an adequate system in place for repairing defects in the highway over the weekend.

Background

This case concerned an accident that happened on Hill Top Avenue in Barnsley. This road was in the bottom category of the Council’s carriageway hierarchy and was subject to an annual inspection.

A member of the public reported a defect in the carriageway of Hill Top Avenue on the afternoon of Friday 27 January 2012. No action, other than logging the call, was taken by the Council until Monday 30 January 2012 when a highway inspector went to inspect the defect and reported it to be a category 1 repair warranting the council to ‘repair or make safe’ within 24 hours. The defect was then repaired on Tuesday 31 January 2012.

The claim arose due to an accident that occurred on the evening of Saturday 28 January 2012 the claimant suffered an injury to his ankle when he stepped into a pothole on Hill Top Avenue whilst out running. The Claimant argued that the Council should have a better system in place for inspecting defects that are reported at the weekend. The Council said they had a defence under section 58 of the Highways Act 1980 which states:

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

The Appeal

In the first instance, DJ Babbington dismissed the claim. He found that the defect was dangerous and actionable but the Council had a satisfactory system of inspection in place and therefore had a defence under s58 of the 1980 Act.

The Claimant successfully appealed to HHJ Robinson at the County Court who held that there was no excuse, other than a shortage of resources, for dealing with defects reported on a weekend any differently to those reported during the working week. A shortage of resources is irrelevant when considering a s58 defence (Wilkinson v City of York Council [2011] EWCA Civ 207).

LJ Briggs and LJ Irwin, with LJ Jackson dissenting, upheld the appeal at the Court of Appeal. LJ Irwin found that:

It may be perfectly reasonable to have a reduced staff and activity over a weekend, but there must be some means of responding quickly to complaints from the public of serious and dangerous defects in the road.”

Lessons

The appeal provides a valuable lesson to highway authorities. There has to be a system in place where serious defects are at least rendered safe within 24 hours even at the weekend. Inspecting defects reported at the weekend the next working day is not an adequate system and there will be no s58 defence in these circumstances.

Contact Holly’s clerks

Francine Kirk on 0113 202 8605

Jordan Millican on 0113 213 5207