Business as Usual - The Court of Appeal rules local authorities must respond to reported potholes over the weekend

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Public Sector Article

08 February, 2017

Michael Crawley v Barnsley Metropolitan Borough Council (2017) [2017] EWCA Civ 36 CA (Civ Div) (Jackson LJ, Briggs LJ, Irwin LJ) 02/02/2017

A local authority appealed to the Court of Appeal after a jogger who tripped in a pothole and suffered injuries was awarded damages.

The Claimant tripped over a pothole on a Saturday evening, the same pothole had been reported to the local authority by a member of the public the day before on Friday afternoon. The report was not seen by a highways inspector until the following Monday. In accordance with the local authority's system, a complaint made by a member of the public on a Monday to Thursday would be considered by an inspector on the following day. However, a complaint made on a Friday would not be reviewed until the next working day, after the weekend.

Mr Crawley argued that the local authority had been negligent and in breach of its statutory duty under the Highways Act 1980 s.41 in failing to repair the pothole before the Saturday evening.

The local authority argued that it had a perfectly satisfactory system in place. They inspected the road at proper intervals, the inspectors went to view any reported road defects promptly and would take appropriate action. In the present case they inspected the pothole on the first working day after it was reported. The council effected a repair one day after that. They contended that they had complied with the Code of Practice, and as a result they had done all that was required to establish a defence under section 58 of the 1980 Act.

The issue before the Court of Appeal therefore was whether the local authority's system for dealing with reported defects in minor roads was adequate.

The Court of Appeal by a majority of 2 to 1 dismissed the appeal (LJ Jackson dissenting). LJ Briggs found that the pothole was a Category 1 defect because its presence represented an immediate hazard. Once recognised as a Category 1 defect, it needed prompt attention, it should either be repaired or made safe by means of notice or fence to warn road users, followed by a repair as soon as possible. According to the Court, the report made to the council on the Friday afternoon gave a strong indication that the pothole was a Category 1 defect, as the caller had described "deep potholes". The Judge stated that there was sufficient evidence which ought to have provoked a response on the part of the council, either remotely or by urgent inspection.

Briggs LJ concluded that the council's system had failed the s.58 test not because had reasonable steps been taken, the injury would definitely have been prevented; it failed because the system suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by anyone with the requisite skill out of working hours, unless the report came from members of the emergency services.

Forbes comment

This decision has significant ramifications for Defendant highway authorities. It was common ground in the judgment that a lack of resources could not be used to justify a failure to provide a reasonable system for responding to complaints from the public over the weekend.

Many local authorities are already over stretched and this decision looks set to further increase the burden on resources. Whilst it is was recognised by LJ Irwin that it is perfectly reasonable to have reduced staff and activity over the weekend, there must be some means of responding quickly to complaints from the public of serious and dangerous defects in the road.

Although, at first glance the judgment might seem alarming to local authorities, in reality the number of accidents that are likely to be caught by this scenario will be minimal.

Local authorities wishing to defend similar claims will need to have a system in place to respond quickly to complaints from members of the public who report dangerous defects 7 days a week. It was made clear that it is not sufficient to wait until the next working day to assess and repair a defect.

Those local authorities who are in the process of considering and drafting new service standards following the publication of the new "Well-managed Highway Infrastructure: A Code of Practice" should keep this judgment in mind when deciding on repair times and cover going forward.

For further advice please contact Sarah Wilkinson by email or on 01254 222399.

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