The unanimous judgment of the CA was given by presiding judge Lord Justice Lloyd. Sir Stanley Burnton and Lord Hughes of Ombersley (who has been elevated to the Supreme Court bench since the appeal hearing took place) completed the bench, and the CA partially overturned the decision of Mrs Justice Slade (reported at [2012] EWHC 796 QB).

Lord Faulks QC and Angus Piper of 1 Chancery Lane, instructed by Mark Fowles at Browne Jacobson, appeared on behalf of Devon CC as Appellant in the CA and as Defendant in the court below (where the Claimant’s claim had succeeded in full).

Whilst on the particular facts of the claim the CA declined to interfere with the judicial findings that there had been a breach of section 41 of the Highways Act 1980 (as there was a long section of severe overriding at the road edge which was held to be dangerous to traffic), and that no section 58 defence could be made out on the facts, they were critical of the judge’s approach to the section 58 defence in principle. In addition, they held the Claimant to be 50% responsible for the accident by reason of his negligent driving.

In particular, as regards the section 58 defence, the CA made it clear that the frequently cited “Code of Practice for Well Maintained Highways” is of no statutory effect and need not be slavishly followed. It was held by Lloyd LJ (in paragraph 20 of his judgment) that the trial judge had fallen into error in her approach to the Code, despite her recognition that the Code was non-mandatory, by treating the Code as if it were a mandatory standard to be adhered to unless there was a positive reason to depart from it.

Lloyd LJ held that “Whilst the Code is clearly evidence of general good practice, its status must not be overstated…The key statement is that at the outset. The code does not set out mandatory rules. It is evidence of good practice. Authorities must exercise their own judgment. The second sentence of 1.3.1 [of the Code] is clearly simply an example of the kind of consideration which might be relevant. When it comes to the specific issue of inspection intervals, other considerations will clearly include traffic use, experience, the frequency of adverse incidents and the like. The advice in 1.3.2, to make explicit reasons for adopting different policies is clearly wise, given the exposure of highway authorities to the possibility of litigation. But it is advice, not a rule.”

At paragraph 21 of the judgment he explained that “Further, again consistently with the status of the Code, it is the plain fact that the categorisation of roads is a matter of assessment left to the authority rather than of hard and fast rule…the evidence of the practice of other authorities pointed towards a respectably held view, amongst professionals charged with highways maintenance, that six monthly inspections of local distributor roads were a reasonable response to the duty to maintain. On the well understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.”

At paragraph 25 Lloyd LJ held that “For these reasons, the judge’s finding that Devon’s adoption of an inspection frequency of six months for local distributor roads generally was a want of reasonable care cannot stand. It was founded on an erroneous approach to the Code.”

In paragraph 31 Lloyd LJ had no difficulty in finding that TR bore an equal share of the blame on the facts, and that the trial judge was wrong to have held that there was no contributory negligence. He held that the area of rutting or potholes at the side of the road where there had been overriding was there to be seen, even if filled with water. Lloyd LJ explained that “It can only have been inadvertence on the part of TR that he did not see the defect in the road and avoid it. There was plenty of room…The judge addressed crossing the edge line but not the omission to be alert to the risk and to see the damage. On the evidence, and the judge’s findings of fact, there was simply no escape from the conclusion that TR made an error in not seeing the damaged area and avoiding it…Although the error may have been one which many might make, it amounted to a significant failure to keep a proper look out and to manage the car correctly; it had terrible consequences. In my view the only proper finding was that there was contributory negligence to the extent of 50%.”

We believe that the foregoing observations of the CA as regards the Code are significant. Expert witnesses, counsel pleading claims and judges at first instance have all fallen into the trap of effectively treating the Code as a mandatory document, or a check-list which must be slavishly complied with. It is refreshing that the CA have now held in no uncertain terms that is not the case.