The Court of Appeal found the local authority's system to inspect reported defects the next working day was unreasonable.
On a Friday afternoon, a member of the public telephoned the Council to report the presence of potholes. The report was logged and forwarded to the highway inspectors and no further action was taken by the council that day.
The Council's system for dealing with reported road defects was to inspect it the next working day. If a complaint was made on a Friday then it would only be inspected on Monday.
On the evening of Saturday 28 January the Claimant was out jogging when he tripped over the pothole and suffered injury to his left ankle.
On the morning of Monday 30 January, unaware of the Claimant's accident, the highway inspector read the call log and the reported presence of the pothole and went to investigate. Upon investigation the highway inspector reported the defect must be repaired within 24 hours. The pothole was repaired by the council's maintenance department the following day.
The Claimant received medical treatment for his injured ankle and decided to commence proceedings for negligence and breach of statutory duty.
The highway authority has a duty under section 41 of the Highways Act 1980 to maintain the highway and ensure it is not a danger to traffic.
Highway authorities have a defence, under section 58 of the Act, if they can prove they had taken reasonable care to ensure the highway was not dangerous to traffic.
At first instance the district judge held the pothole was dangerous and actionable, however the local authority had a defence under section 58.
The Claimant appealed the decision to the High Court, who held there was no justification for why complaints reported on a Friday could not be handled in the same manner as complaints reported on a Monday to Thursday i.e. the following day. The court suggested Council staff should have been instructed to forward complaints to "on-call" highway inspectors.
The Council appealed to the Court of Appeal where in a 3-2 verdict they dismissed the appeal.
Lord Justice Jackson was of the view the appeal should succeed as it was relevant to consider how society is structured. Most people do not work on weekends and therefore the council's system of handling complaints on the next working day was reasonable.
However Lord Justice Briggs and Lord Justice Irwin disagreed and dismissed the appeal:
The pothole presented an immediate and imminent hazard and required immediate attention by way of placing a notice or by fencing or coning.
The council's call centre had reported "deep potholes" and therefore this should have been sufficient to show the pothole could have disclosed a real risk.
In cross examination the Council agreed they did not operate teams to work on weekends due to lack of resources. It was reiterated by Briggs LJ and Irwin LJ that lack of resources cannot justify a failure to provide a reasonable system.
What can we learn?
- The case reaffirmed Wilkinson, where it was agreed the shortage of resources is irrelevant when considering the adequacy of measures taken to secure the safety of the highway.
- It will be interesting to see how courts will approach the issue of affordability following the publication of the new Highways Code of Practice, 'Well Managed Highways Infrastructure'. The Code was published on 28 October 2016 and local authorities have two years to implement a full risk-based approach based in accordance with each local authority's needs, priorities and affordability.
- It is not unreasonable to have a system in place whereby reported defects are inspected the next working day. However mechanisms need to be put into place to allow for an evaluation of the severity of the defect as soon as possible. In circumstances where the defect would be deemed a real risk then repairing the next working day would be unreasonable.