AC & DC-v- TR and Devon County Council (Part 20 Defendant): QBD

The two Claimants were passengers in a vehicle driven by the Defendant.

The Defendant had moved into the offside lane in order to overtake another vehicle. The offside tyres of his car went into a potholed area at the side of the metalled edge of the carriageway. He steered out of the rut, but lost control of the vehicle and collided with trees on the nearside verge of the road.

Liability was conceded in the main action. The Defendant brought a claim against the Council (as the Highway Authority) for breach of its duties under s41 Highways Act 1980.

It was admitted by the Council that there was a defect on the Highway on the day of the accident that would have been repaired if seen. The last inspection by the Council was carried out four months prior to the accident date.

In their defence the Council sought to rely upon the statutory defence under s58 - i.e. that they had taken such care as in all the circumstances was reasonably required to secure that the highway was not dangerous for traffic.

The road

  • Rural road known to be used by heavy vehicles
  • Traffic was known to override the metalled edges of the carriageway, and damage the metalled edge, and verge
  • The Council accepted that the whole width of the metalled surface was there to be used, and the area beyond the white edge lines was also used when overtaking
  • This resulted in a large pothole forming at the side of the road
  • It was conceded that the Council also had an obligation to maintain this area
  • The white edge line was not visible or barely visible in sections of the carriageway
  • The road was 5.2 metres wide
  • The pothole was approximately 55cm at its widest point, with the greatest intrusion into metalled surface of the road being up to 40cm
  • The pothole was 8cm deep.

The Judge found that:-

  • The Defendant's vehicle was travelling at approximately 45mph as it overtook the car
  • It entered the pothole before the point of maximum intrusion, and travelled along the rutted pothole area where the white line was missing or difficult to see
  • The Judge held that the Defendant had satisfied all the elements identified in the case of Mills -v- Barnsley:-
    • That the highway was in such a condition that it was dangerous
    • That the dangerous condition was created by the failure to maintain or repair the highway; and
    • That the injury was caused by the failure to maintain/repair.

S58 defence

  • The burden lay on the Council to establish that they took such care as in all the circumstances was reasonably required to secure that part of the highway
  • The test is one of reasonableness
  • The Judge considered the Department of Transport 2005 Code of Practice for Maintenance Management ("COP"), which indicated that for this category of road, inspections were recommended on a monthly basis
  • The Council had in fact only inspected at six-monthly intervals
  • The Council were unable to show any record of why they had departed from the COP
  • There was no evidence that any risk assessment had been carried out to determine whether six-monthly inspections were adequate, taking into account the nature of the road and the amount of traffic
  • As the Council failed to establish that a six-monthly inspection was reasonable, their attempt to raise a s58 defence was unsuccessful
  • The Defendant was not contributorily negligent in that:-
    • Driving onto or possibly beyond the white edge line did not show that he failed to take reasonable care for his own safety; and
    • His reaction by steering out of the rut did not display a lack of reasonable care
    • The Defendant was therefore wholly successful in his claim that the Highways Authority were in breach of their duty under s41.