This decision is to be welcomed as the Court of Appeal has made it clear that the "Well–maintained Highways - Code of Good Practice for Highway Maintenance Management" (the code) is non-statutory and non-mandatory and is to be treated as guidance only.
However, if a highway authority departs from the guidance given within the code, it must be in a position to demonstrate that it has carefully considered the reasons for this. Reasons should include local factors, for example that a road is not a bus route, is not close to a school or is a country road as opposed to a residential street. Local highway officers will know their areas better than anyone and so need to give an explanation by reference to these local reasons, using their knowledge and experience.
The significant finding by the Court of Appeal of contributory negligence demonstrates that this is an important argument to run in cases such as this.
Whilst TR was overtaking on a country road, his Land Rover left the road. His passengers were very seriously injured.
They sued him and he made a claim against the highway authority (Devon CC) alleging that he had lost control because of the defective state of the road. There was damage to the edge of the tarmac, known as overriding damage.
At first instance, Mrs Justice Slade held that Devon CC was liable:
- She found that the state of the road caused TR to lose control.
- Section 41 of the Highways Act 1980 sets out a duty on the highway authority to maintain the highway. For civil claims, s.58 provides a defence where such care has been taken as was in all the circumstances reasonably required to render the highway not dangerous for users of the highway. In this case the principal issue was whether Devon CC inspected the road sufficiently often. Devon CC’s practice was to inspect at six monthly intervals.
- According to the code, the suggested frequency of inspection for the road in question is one month. Slade J held that the six monthly inspection system was insufficient. A departure from the code would constitute a lack of reasonable care unless it was predicated on a reasoned and specific assessment.
- Whilst not entirely agreeing with Slade J, Lord Justice Hughes upheld the decision on primary liability, subject to 50 per cent contributory negligence.
- The code was clearly evidence of general good practice. However, its status must not be overstated. It has no statutory basis and its recommendations are not mandatory. Evidence showed that several other local authorities adopted inspection intervals different from those set out in the code.
- However, the statutory defence under s.58 had not been made out. There was sufficient evidence to justify Slade J’s conclusion that this particular road needed inspection at shorter intervals than six monthly. This included detailed inspection reports demonstrating that the road was known to be subject to overriding damage of the kind which was involved in this accident.
- TR made an error in not seeing the damaged area and avoiding it. A finding of 50 per cent contributory negligence was appropriate.