In order to succeed with a claim for injuries arising from tripping over a pothole in a badly maintained highway a claimant has to prove that the defect was dangerous, foreseeably so, and that there has been a failure by the relevant highway authority to maintain the surface of the highway because highway authorities have a defence under s58 of the Highways Act 1980 which provides ( in paraphrase) that a claim will fail if the highway authority has taken such care as is reasonably required to see that the part of the highway in question was not dangerous. Many cases fail because the section 58 defence is established.
In the Crawley case, on the afternoon of Thursday 27th of January 2012, a caller had complained about the appalling state of the potholes on a section of highway in Barnsley. The very next day, Friday 28th January 2012, a jogger tripped over one of the potholes complained about whilst running in the dark and injured himself. The weekend then intervened and on the following Monday a highways inspector inspected the pothole following the call on the previous Thursday and arranged for there to be a repair which was carried on on the Tuesday, so report, injury, inspection and repair all occurred within the space of four days of the working week with the weekend intervening.
But was that good enough?
The Council considered it was, that they had responded quickly enough and denied liability.
The Claimant disagreed.
The Council’s defence succeeded before the District Judge in the County Court, and the Claimant lost. The Claimant appealed to a Circuit Judge and the Claimant won the appeal so the Council then appealed to the Court of Appeal and lost again.
The rationale of the Court of Appeal was that the pothole was a significant defect requiring immediate attention and repair but it would only have had such immediate attention and repair if the report of the pothole had come in from the emergency services since reports of potholes from the emergency services were dealt with immediately as category one repairs even out of hours.
In contrast, reports from the general public were given a lesser status and there was no training given to call centre staff to decide which reports from the general public were serious enough to be given a category 1 response time and the out of hours duty team only became involved on category 1 repairs.
Accordingly, the Council had not taken reasonable care to ensure the road was safe for users and its response and repair system were inadequate and defective. Limited Council resources was no defence in law.
