Highway Authority win: the importance of proper case preparation
Nash v Hertfordshire County Council [30.11.20]
This article was co-authored by Remi Brookes, Trainee Solicitor, London office.
The underlying case concerned a claim for personal injuries and loss suffered by the claimant, who contended that swerving to avoid potholes on a rural access road in Hertfordshire, while navigating a bend, caused him to collide with a transit van. The claimant argued that Hertfordshire County Council, as the relevant highway authority, had breached Section 41 of the Highways Act  in that:
- The defects in the road were a danger to road users.
- These defects caused the claimant’s accident.
- The inspection that took place seven months prior to the accident was performed incorrectly and defects were missed/incorrectly categorised.
- The highway’s maintenance polices were deficient.
- The lane was classified incorrectly meaning that the road should have been subject to more frequent inspections.
The highway authority submitted that the sole cause of the accident was not the surface of the road but rather that the claimant had cycled too fast and too wide around the corner. The highway authority stated that whatever defects were present, they were not dangerous given their size and location, and they played no part in the accident. They also argued that the road was classified correctly and therefore an annual inspection was appropriate; the last inspection having been carried out correctly. The highway authority asserted that it had taken such care in all the circumstances as was reasonably required to ensure that the lane was not dangerous to traffic and therefore relied on the statutory defence of Section 58 of the Highways Act .
The case saw a large number of witnesses called including multiple local residents and those responsible for inspecting and maintaining the roads.
HHJ Lickley QC dismissed the claimant’s claim, finding that no actionable defects were present on the day of the inspection prior to the accident, and that the potholes present on the accident date did not present a real source of danger. The road classification was also noted to be correct.
The Judge considered the account of the accident the claimant had provided to the police following the collision, in that he was cycling too wide and too fast around the bend and found that this account was supported by physical evidence given by the defendant’s accident reconstruction experts.
The depth of the potholes was also a key issue. At trial, the Judge did not accept the evidence of the claimant’s wife and solicitor who presented measurements they had taken with their hands and various objects, rather than a ruler. Referring to the judgment of Walsh v Kirkless , the Judge concluded “there is simply not enough reliable evidence of the dimensions or conditions of the pothole for me to say it is more likely than not that it presented a real source of danger in the sense identified”.
The evidence of the defendant’s highway expert was preferred due to his experience and detailed analysis of the evidence when compared to the claimant’s expert, who had not worked as a highways inspector or visited the accident location when preparing his report.
Detailed and comprehensive evidence from both factual witnesses and experts is essential to enable a court to reach a considered view. Its importance is starkly highlighted by this recent case.