The out of hours response to dangerous defects

The Court of Appeal decides that there has to be some means of responding quickly to complaints from members of the public of serious and dangerous defects in the road.

Background

The case involved an appeal made by a local authority against a decision that it was liable to pay damages. The claim followed an accident which occurred as a result of a pothole in a minor road. 

A member of the public had reported the pothole to the local authority at 4.20pm on a Friday. The claimant sustained injury the following Saturday evening whilst jogging, by tripping on the pothole and falling. In response to the complaint, the area was inspected by a highways inspector on the following Monday. When the inspection took place, the defect was identified as a Category 1 defect and a repair was completed by the Tuesday.

The claimant brought a claim for damages, alleging that the local authority was negligent and in breach of its statutory duty under the Highways Act 1980 (the Act). The judge at first instance held that the local authority had a defence under s.58 of the Act, but the decision was overturned on appeal. The issue in the instant appeal concerned the adequacy of the system for dealing with reported defects in minor roads.

The local authority’s system for dealing with reports out of hours and at weekends was such that, other than reports from emergency services, these were logged to await review by the highway inspector during the next period of working hours, regardless of what the defect was.

Decision

The Court of Appeal held:

• The report made to the local authority on Friday afternoon gave rise to a real risk that the pothole was a Category 1 defect within the meaning of the Well Maintained Highways: Code of Practice.
• The defect represented an immediate or imminent hazard which required immediate attention.
• The local authority’s system failed the s.58 test because, had reasonable steps been taken, whilst the injury may not have been prevented, the reports of potentially serious defects were not being evaluated by anyone with the requisite skills outside of working hours, unless the report came from emergency services.
• It is common ground that a lack of resources does not justify a failure to provide a reasonable system. It might be perfectly reasonable to have reduced staff and activity over the weekend. However, there must be some means of responding quickly to complaints from members of the public in relation to serious and dangerous defects.

Implications

In a dissenting judgment, Lord Justice Jackson advised that, whilst a lack of resources is not a defence, the fact that most people do not work weekends is a relevant circumstance. Section 58 requires the court to give rise to all the circumstances. A system whereby reports should be inspected on the next working day (or immediately) is not a perfect one, but a reasonable one.

Local authorities must now establish a system whereby they are able to assess defect reports at all times, notwithstanding the weekend period/out of hours if they are to successfully raise a s.58 defence.