Highway must be dangerous

Road accidents caused by roads in poor condition are not always easy to pursue against the highway authority. This might seem odd, but the highways are maintained by the State, so the State gets to set the standard.

Here is an example of a decided High Court case where a vehicle overtook on a minor road. The wheels on the driver’s side of the overtaking vehicle were caught in a series of potholes which tramlined the vehicle. The road had no kerb stones at the edges. The driver steered sharply to the left but lost control and left the road on the left side. Miraculously the car being overtaken was not hit, but the occupants of the overtaking car came off badly.

So what must the driver of the overtaking car prove to show the highway authority is liable to pay compensation for personal injuries?

The Claimant was driving a Land Rover on a country road for which involved Devon County Council was responsible.

The Highways Act 1980 is the starting point:

41(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.

That does not tell us much. The Act then goes on to tell us the highway authority can defend itself by showing it “had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”

So the Claimant has to show the highway was dangerous. It is not enough to show the road was poor, or in a bad state of repair, it has to be dangerous. To assess that defence the Court will look at:

• The type of road, its traffic, and the standard of maintenance appropriate,

• The state of repair in which a reasonable person would have expected to find the highway,

• whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway

• where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed

The Relevant Facts

It was a rural road known to be used by heavy vehicles and agricultural plant;

Such traffic was known frequently to override the metalled edges of the carriageway and damage the verge and carriageway edge;

The verges in this section of road were known to be soft throughout the year.

Soft verges were more susceptible to damage. Damaged verges deprive the carriageway edge of support leading to a greater risk of failure.

Devon described the C25 as a typical rural road. In the stretch of road where the accident happened the single carriageways were separated by a broken white line. There were also white edge lines. In some places there is no centre line and in others no edge lines.

The relevant stretch of road was straight, giving drivers an opportunity to overtake after a winding section.

The road was approximately 5.2 metres wide. The damage began about 168 metres past the start of the nearside grass verge at the Limer’s Cross road junction and extended for about 51 metres, ‘leaving a large pothole at the side of the road’. The ‘pothole’ varied in width. It was approximately 550 mm wide at its widest, the greatest intrusion of the pothole into the road was by approximately 400 mm. The pothole was approximately 80 mm deep. The point of maximum intrusion of the overriding into the road was about 15 metres along the road from the southern end of the overriding damage. The curved tyre mark on the road began about 32 metres from the southern end of the damage and thus about 17 metres beyond the point of maximum intrusion.” The width of the vehicle tyres was 235mm.

So the side of the road was damaged creating a rut that caught the offside wheels of the overtaking vehicle.

From this point the highway authority can still defend itself if it has a reasonable system of inspection and repair. Devon thought it enough to inspect this type of road every 6 months, but the Department of Transport Code of Practice for Maintenance Management (‘COP’) which was in force at the time suggested monthly inspection. The Highway Authority could still have avoided criticism if it had risk assessed this type of road and recorded its own good reasons for thinking inspecting only twice each year was enough.

The next question is when did the defects occur? The law does not demand immediate repair, and if the problem occurs between reasonable inspection periods, then it can wait until that inspection. Devon accepted had it seen the defect there would have been a repair. The Judge accepted the defect was present for a number of weeks.

You might think the law does not impose a very heavy duty on the local authorities responsible for our roads.

Thankfully the Claimant succeeded in this case. He was able to show the road was dangerous, and the council were not able to say they had done enough through its inspections.

The driver was also able to resist arguments that he should not have overtaken, that he drove too quickly, or that he reacted incorrectly when faced with the tramlining problem.

The case report can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2012/796.html&query=Devon+and+County+and+Council&method=boolean

Related content

Personal Injury trusts and how I can help
Personal injury trusts guide

Protect your compensation

Receiving interim or final compensation payment?

You may need a trust to protect benefits and local authority care.

My contact details


01392 314086 (landline rate)

07785 342483 (mobile rate)

M-F: 9am-5pm, S-S: Closed

Get in touch