A restriction of section 58? Considerations for highway authorities

Under s41 of the Highways Act 1980 (the Act), a highway authority is under a duty to maintain the highway. Claims for personal injuries and loss are brought against the highway authority by claimants who have sustained some injury or damage caused by a defect in the fabric of the highway.

The Highways Act 1980 (Amendment) Bill is a private members’ Bill sponsored by Sir Christopher Chope, which seeks to amend and restrict the ‘special defence’ available to highway authorities under s58 of the Act.

What is the special defence?

s58 is a special defence open to a highway authority to defend claims for damages for non-repair of a highway. In order to rely on it, the highway authority must prove that it has taken reasonable care to ensure that the part of the highway, to which the action relates, was not dangerous at the material time.

Proposed amendment

The proposed amendment is to omit the duty of reasonableness and replace it with a duty to take “all possible steps” to ensure that the highways was not dangerous at the material time.

The current legislation sets out what the court should have regard to in considering a s58 defence. This includes:

• The character of the highway and the traffic reasonably expected to use it;
• The standard of maintenance and repair;
• Whether the highway authority knew or could reasonably be expected to know that the condition of the highway where the incident occurred was a danger to users of the highway; and
• Whether any warning notices were displayed.

The amendment seeks to require the court to consider:

1. Whether the highway authority had, within the previous six months, carried out a full survey of the condition of the highway to which the action relates;
2. The date on which the section of the highway was last repaired; and
3. The date on which the section of the highway was last subject to surface dressing.

A highway authority seeking to rely on a s58 defence would also be required to provide the claimant with documentary and other evidence relied on within 28 days of receipt of any claim. 

How would this amendment impact highway authorities?

The obvious tone and intention of the Bill is to impose a higher bar for highway authorities in the defence of highway claims. The proposed amendments disregard the different types of highway, implying that all highways should be considered to the same standard, whether or not they are strategic routes with high levels of vehicle and/or pedestrian traffic or local access road with lower levels of vehicle usage and footfall. All highways would be subject to six monthly condition surveys in addition to safety inspections. 

As part of a s58 defence, a highway authority would already provide the repair history for the relevant stretch of highway for the 12 months pre accident. However, if the Bill receives Royal Assent and comes into force as currently drafted, the highway authority would need to provide specific historical data as to when the highway was last subject to a condition survey and when it last underwent surface dressing. This could be many years before and would involve a more detailed analysis of the condition of the surface of the highway to include technical assessments, such as SCRIM (Sideways Force Co-efficient Routine Investigation Machine) surveys, and structural maintenance visual assessments such as CVI (coarse visual inspections). This may necessitate expert evidence at trial, which is not routinely obtained in highway claims.

Highway authorities will already have an integrated asset management approach to highway infrastructure based on their risk based approach for highway inspections, following the implementation of the ‘Well-Managed Highway Infrastructure – A Code of Practice’. These policies may include technical and structural assessments which may not be carried out as frequently as every six months.

If the amendment is approved then highway authorities will need to re-consider their highway maintenance policies.

How would this amendment impact on claims?

Highway authorities are well versed in dealing with injury claims and the evidence required to support a s58 defence. If the Bill is passed, it is reasonable to assume that there will be an increase in claims, as the evidence required to establish a s58 defence is more onerous. The amendments may mean that in order to find for a claimant, all the court would need to look at is when the highway last underwent any maintenance, over and above just a pothole repair.

Comment

The Bill has not set out how highways authorities will fund the additional surveys and surface dressings. A House of Commons research briefing on ‘Pothole and local road maintenance funding’ published on the 7 March 2024, referred to an annual industry report which in 2023 suggested that there was an estimated 18% of local road networks in England (excluding London) in poor condition. It was predicted that a one-time cost to clear the backlog of maintenance issues would cost £12.1 billion and take 11 years to complete.

It remains to be seen how highway authorities, particularly those funded by local authorities, will be able to demonstrate that they have taken “all possible steps” within their limited resources to satisfy the requirements of the amendments contained within the Bill. In our view, this concept should be explored and will likely be clarified through case law.

The Bill is in its early stages. A Second reading will take place in the House of Commons on 26 April 2024, but there is a long way to go before the proposals are implemented, if ever. As most private members’ Bills fail, there is a high chance that this proposed legislation never comes into force.