The interplay between a Council's old Highway Code of Practice and their new one helps them to a successful defence of a highways tripping claim

Elizabeth Bower
Elizabeth Bower

Published: March 4th, 2022

7 min read

We successfully defended a claim brought against Wigan Council by a claimant who tripped on a damaged speed bump as she walked over it in January 2019. She claimed that the damage was such that the Council had breached their duty to maintain the highway in accordance with S41 of the Highways Act 1980, in that it was a danger to pedestrians.

Wigan Council denied that the speed bump was such a danger, but claimed that if it was, they had a defence under S58 of the Highways Act as they had taken such care as was reasonable to secure that the highway was not dangerous.

The evidence from the highway inspector was that he had measured the damage at 45 mm shortly after the accident and taking that into account as well as the photographs provided to the court the judge concluded that it was a danger. However, he went on to consider the S58 defence.

Prior to 1 October 2018 Wigan Council followed their own Highways Inspections and Maintenance policy. After that date, they adopted the Greater Manchester Policy. Classification of roads and inspection frequencies did not change as a result of the change, however what did change was that prior to 1 October 2018 a defect of 40mm or more was the trigger for the intervention level at which a repair would be ordered and carried out. After that date 40mm became the investigatory level which triggered further investigations as to whether the defect required a repair, using a risk-based approach.

The Council operate both driven and walked highways inspections. The court accepted the evidence of the highways inspector that he carried out walked highways inspections in March and September 2018 under the old policy, and that had he seen a defect of 40mm or more he would have necessarily ordered a repair. As such the judge accepted that the pothole was not a danger as at September 2018.

There was a driven inspection involving 2 inspectors in November 2018, under the new policy. Again, the judge accepted the inspector's evidence that the speed bump was not a danger at that time. The inspector said that had he seen anything dangerous he would have asked for the driver to stop the car so he could measure it and carry out a risk assessment. The judge accepted that it was unlikely that they would have missed it had it been a danger. He also accepted that it crossed the threshold between the last inspection and the accident date. It had been a cold time of year and he said that deterioration can occur due to cold and wet weather. He had also seen photographs showing evidence of deterioration, in that there were pieces of broken off road material at the edge of the speed bump. As there had been no complaints or other accident at the location in between times he found that the S58 defence had been made out and dismissed the claim.

Forbes Comment

An early consideration here was that the inspections being relied upon to defend this claim were done under 2 different policies, with the accident occurring after the old one ceased to be in use and just after the first inspection under the new regime. We knew that we had to have good evidence from the relevant inspectors that showed their understanding of the differences in policies. The change from a 40mm intervention level to a 40mm investigation level evidenced over several inspections before and after the change from the use of the old Policy to the new one, enabled the Council to persuade the judge that the pothole must have deteriorated since the pre accident inspections.

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