20 August, 2014
Following the Government's comprehensive spending review in 2011, Local Authorities suffered severe budget cuts. Since then Local Authorities have faced even tougher choices about the services they provide. The 2011 case of Wilkinson v York  EWCA Civ 207 put further pressure on cash strapped Local Authorities. In this case, the defendant Local Authority had deviated from the National Code of Practice and had implemented an annual inspection of the accident location rather than a three month inspection regime recommended under the National Code of Practice. In evidence, it was explained that due to limited financial resources the authority had been forced to alter their inspection frequencies because they could no longer afford to employ the same number of highway inspectors.
The Court of Appeal judgment set out that a local authority's resources are irrelevant to the statutory defence under section 58 of the Highways Act 1980. It was stated that Parliament had included man power resources as a consideration in other parts of the Act, but such considerations did not feature in Section 58. As a result, arguments based upon budgetary constraints should not be a factor when determining whether a local authority had done what was reasonably required to secure the highway.
The Judgment in Wilkinson v York was criticised for placing too much emphasis on the 'absolute' duty of Local Authorities to maintain the highway under section 41 of the Act. The duty under section 58 is only to do what is 'reasonably required'. The classic 1992 case of Mills and Barnsley set out the following -
"In drawing the inference of dangerousness in this case, the judge impliedly set a standard which if generally used in the thousands of tripping claims which comes before the Court every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life. It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highway is more urgently needed."
Two recent trial wins by Forbes Solicitors suggest a potential change in attitudes by Judges towards the budget constraints faced by Local Authorities. In the case of Stanford v Blackburn with Darwen Borough Council (17 July 2014) the Claimant tripped over a defect in the road. The defect had been identified by an inspector during a highway inspection prior to the index accident. The defect was ordered for repair within 15 days. The repairs were done within the appropriate time scale. The Defendant submitted that it had taken such care as in all the circumstances was reasonably required. There was a system in place for inspection which was properly carried out. The defect was noted for repair and the accident regrettably occurred within the repair period.
The Claimant contended that the inspector should have used his discretion to upgrade the category of repair for the defect. The Judge stated -
"If I were to find that a Defendant should have used their discretion, I would be reversing the effect of Mills v Barnsley. This would be an unreasonable burden on the Defendant."
In deciding whether the Local Authority had acted reasonably, the judge found that it was clear that the policy had been applied. The defect was noted and reported for repair with a 15 day time limit. The Defendant's policy was in accordance with the national guidelines and it was not incorrectly classified as 15 day repair. In view of the financial restraints on local authorities the Judge found that it was unjust to impose such an unreasonable burden to upgrade the repair criteria.
Similarly, in the case of Gregory v Bolton Council (10 July 2014) the Judge took into account the limited financial resources of the Local Authority when considering whether the Defendant ought to have increased the frequency of inspections. In this case, the Claimant alleged he was thrown off his bike when his wheel went into a gully, the cover of which was missing. The road was subjected to an annual highway inspection. The Claimant contended that a more frequent inspection was required because of the prevalence of vandalism. The Judge was emphatic that the figures did not bear that out. She stated that 250 stolen gully covers in the whole of Bolton struck her as a small number, not a prevalence of stolen gully tops. Only 2% of claims for the year in question related to gully covers. The Judge stated that it seemed to her that the Defendant had taken such care as was reasonable and is in fact envisaged by the Code of Practice. She said -
"Having regard to the number of gully covers stolen in the scheme of things it does not seem anywhere near a big enough concern that there should be additional inspections when one takes into account the limited resources."
Whilst budget constraints will never offer a complete defence, it is apparent that Judges are prepared to consider the limited resources of Local Authorities as a factor in determining cases. If Local Authorities are to put forward a budgetary argument, it must be supported by evidence. If Local Authorities have departed from the Code of Practice, they must be able to show careful consideration has been taken in making the decision at an executive level. Local Authorities will need to produce clear, cogent and detailed evidence in support of their case as the evidential burden rests with the Defendant.