02 May, 2013
The Court of Appeal provided further guidance to highway authorities in finding that the 'Code of Practice (COP) for Well Maintained Highways' was of no statutory effect and need not be slavishly followed.
Briefly, the facts involved an incident on a winding and hilly country C-road in Devon, when T whilst overtaking a car hit a section of rutting on the edge of the road on the offside causing him to lose control of his vehicle and with his passengers sustaining serious injury. The road was inspected on a 6 monthly basis. The judge had found that the road was dangerous in places and that there had been a breach of s.41 Highways Act 1980. She also found that the Council had not made out the statutory defence under s.58 as the Council had not justified its departure from the recommended monthly inspection interval in the COP.
The Appeal Court found that the trial judge had been entitled to find on the facts that the rutting in the road caused T to lose control and caused the accident. The Appeal Court found that T could have seen the rut and avoided it and therefore made a finding of 50% contributory negligence.
However, the important parts of the Judgment relate to the Appeal Court finding of the effect of the COP which highway authorities and the Courts do rely on and refer to when considering whether a highway authority has followed acceptable standards to make out a statutory defence under s.58.
Firstly, the COP was found to be non-mandatory and the trial judge had erred in treating it as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it.
The Council had its own code and had classified the road as a local distributor road subject to an inspection frequency of 6 months. The national COP suggested 1 monthly inspection. The trial judge concluded that the Council had not justified its departure from the recommended inspection interval by not having any formal risk assessments and only monthly inspections would discharge the duty to take reasonable care.
The appeal court found that the judge fell into error by treating the COP as a mandatory standard. It has no statutory basis. The COP was 'good practice' but highway authorities had to exercise their own judgment. The COP advises that highway authorities which adopt different policies in light of local circumstances should have reasons for any such differences in their own codes or policies. The Appeal Court endorsed that as "clearly wise....But it is advice, not a rule."
On the facts of the case there was sufficient evidence that the particular road needed inspection at shorter intervals and therefore the Appeal Court found no reason to depart with the finding that the Council had not made out an s.58 defence.
It is often the case that the COP is seen as a minimum standard which highway authorities have to adhere to otherwise a s.58 defence can not be made out. The Court of Appeal have certainly clarified that this is simply not the case. It is evidence of good practice but individual considerations such as traffic use, experience, frequency of adverse incidents and the like need to be taken into account. There is no hard and fast rule. To be in a position to justify any departure from the COP, highway authorities should consider it wise to continue to have written reasons for any such departure.