Code of practice for well-maintained highways held to be non-mandatory guidance

Code of practice for well-maintained highways held to be non-mandatory guidance

Published:

Author: Rubina Zaidi

Some local authorities may have been concerned by the decision of Mrs Justice Slade in AC v Devon CC [2012] EWHC 796 (QB,) which held that the recommended inspection interval of roads in a non-statutory code of practice was a mandatory standard.

The facts

Whilst overtaking a slower moving vehicle on a country road the vehicle left the road to the nearside and the passengers were seriously injured in the ensuing crash into trees alongside the road. The passengers sued the driver and the driver made a third-party claim against the highway authority - Devon County Council - alleging that the defective state of the offside of the road caused him to lose control.

Devon had in place its own manual for road inspection and treatment of defects, and it categorised the road in question as a local distributor road with an inspection frequency of six months. The Code suggested an inspection frequency of one month for this category of road.

Mrs Justice Slade held that the driver succeeded in his claim that Devon was in breach of its duty under s.41 of the Highways Act to maintain the relevant section of the road and that Devon did not establish the statutory defence under s.58. She also held the driver was not contributorily negligent. The county council appealed the decision in AC and others v TR and another [2013] EWCA Civ 418.

The Court of Appeal considered the following issues

  • Was there a breach of section 41 Highways Act 1980? i.e. was the road in a condition which exposed those using it in the ordinary way to danger? If yes:
  • Was the accident caused by that breach? If yes:
  • Has the Highways Authority made out the statutory defence under section 58 Highways Act 1980? i.e. have they taken all reasonable care? If no:
  • Was there any contributory negligence on the part of the driver?

The court declined to interfere with the findings of the lower court on section 41 and causation. The Court of Appeal held that section 41 was made out and that the accident was caused by that breach. The Court of Appeal was, however, critical of the judge's approach to the section 58 defence in principle.

The court held that while the Code is clearly evidence of general good practice, its status must not be overstated. The Code does not set out mandatory rules and highway authorities must exercise their own judgment.

Hughes LJ stated that: "Further, again consistently with the status of the Code, it is plain fact that the categorisation of roads is a matter of assessment left to the authority rather than of hard and fast rule......At the very least, the evidence of the practice of other authorities pointed towards a respectably held view, amongst professionals charged with highways maintenance, that six monthly inspections of local distributor roads were a reasonable response to the duty to maintain. On the well understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads."

The court held that the judge's findings on a lack of reasonable care could not stand as it was founded on an erroneous approach to the Code.

However, the Court of Appeal went on to consider if this particular road called for greater frequency of inspection on the facts. The judge at first instance had considered as evidence detailed inspection reports for the road in question over a period of three and a half years.

This evidence demonstrated that on every inspection except one, the last, the road had been found to have significant safety defects calling for immediate or urgent repair. Moreover, the road was known to be subject to overriding damage of the kind which was involved in the accident.

Evidence from Devon's highways officer confirmed that this particular road was used by heavy goods and large agricultural vehicles, and that given the soft verge it was prone to overriding damage.

The harvest months of August and September were likely to cause movement of large agricultural vehicles and that period would have come after the last inspection and not long before the accident.  It was accepted by the highways officer that it was not just foreseeable but probable, that the verge rutting would occur on this road which, if not dealt with, would lead to edge deterioration.

The Court of Appeal therefore held that that there was sufficient evidence to justify the first instance judge's conclusion that this particular road needed inspection at shorter intervals than six months and therefore they upheld her decision that the section 58 statutory defence had not been made out.

Highways authorities need to ensure that they are not overly reliant on conformity with stated inspection frequency to make out their statutory defence. The authority needs to take into account if a particular road warrants increased frequency of inspections due to factors such as known issues, heavy traffic etc.