Highways Infrastructure And Defenses

Mr John O’Brien v Downton Council

As per our client’s instructions, it indicates that, the issue is related to a compensation claim for damages against the Downton council under the tort of negligence.

According to s41 of the Highways Act 1980, Councils are legally responsible to maintain the roads and footpaths within their districts. In O'Brien's case, a member of the public has reported a dangerous road defect to the Downton Council on the 19th of January 2018 and requested for an urgent repair to be done within 24 hours. However, due to lack of the resources, the Downton Council failed to take any immediate action to repair the defect, where Mr O'Brien's damages could have been prevented.

The new highways code of practice “Well-Managed Highways Infrastructure” Part B and C requires the highway authorities to develop the standards of inspections, conditions, assessing priorities and guide plan for emergencies. In TR v Devon, it has been established that, the new code is an evidence of a good practice. Here it appears that, the local authorities did not comply with the principle of Well-managed Highway Infrastructure. Nevertheless, failure to comply with the guidance does not mean that, local authorities will not be able to defend a claim successfully under s58 Highways Act 1980.

Moreover, the Downton Council may have merits of the defence under s58 of the Highways Act 1980. If the Downton Council could prove that, they had done all that was “reasonably required to secure that the part of the highway, to which the action is related, was not dangerous for traffic” Griffiths v and could not reasonably have been expected to know that the defect would cause danger to the road users then they will escape liability.

Mr O’Brien could argue that, the risk of the pothole was foreseeable, but the Downton Council had not taken any appropriate actions in all circumstances reasonably so that they could make the highway safe for the road users in the district.

In Mills v, the Plaintiff heel caught in a hole in a road and brought a claim against the highway authority. It was held “The test of dangerousness is one of reasonable foresight of harm to users of the highway”. In this case due to a minor defect and a low risk, the highway was not dangerous therefore the plaintiff’s claim was dismissed. In O’Brien’s case, his shoulder fractured as a result of his fall and therefore, it appears that, the danger of the pothole was reasonably foreseeable to establish liability.

In Harrison v, the claimant put her foot in a pothole more than an inch deep. She fell down and injured her knee, even though the council denied liability but agreed to the sense that what happened was not the claimant’s fault, the place of the accident was a part of the highway and the defect was dangerous for the road users. Hence, the council was in breach of its duty and liability to the claimant s 41(1) of the HA1980. Similarly, in AC v, the claimant was driving a car in a country road and his vehicle’s tyre hit a pothole in the road as a consequence he lost control of his vehicle and his passengers were seriously injured. It was proved that, the road was dangerous in different places and hence, the highway authority was in breach of its statutory duty and the claim was successful.

Adams v the claimant, who had tripped over a concrete slab which was hidden by vegetation on a footpath, was not entitled to recover the damages from the defendant local authority. Liability under the s.41 of the HA 1980 would only attach to the local authority if the concrete concerned had become part of the fabric of the footpath. In O’Brien, that was not the case as it was obvious that, the pothole was a part of the highway.

In the similar circumstances in Crawley v, the pothole was previously reported to the local council by a member of the public (on Friday during business hours). However, due to lack of resources, the defect was inspected on Monday. On Saturday, Mr Crawley tripped on the Pothole and suffered ankle injury. It was held that, failure to provide a reasonable system is not a defence under s58 Highway Act 1980. In Wilkinson v, established that “lack of resources is not a good reason for having an inadequate system”. O’Brien could argue that, the Downton Council failed to prove that, they had a reasonable system of inspection and repair in place therefore the factor lack of adequate resources could not be taken into consideration and defence under s58 HA 1980 cannot be relied on.

In conclusion from the facts stated above, it appears that, the pothole was dangerous to traffic Mills v’ and the place of the accident was part of the highway Harrison v. The defence on the lack of resources to provide an immediate action to repair the defect will not be taken into consideration as in Wilkinson v. The Downton Council should have taken reasonable steps to ensure that, the pothole dealt with swiftly, Crawley v. It is likely that Mr O’Brien to be successful in his claim for damages.

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Research Trial:

All search for this piece of work carried out on 15th and 16th of December 2018.

I consider that on the facts given the legal issue here appears to be a compensation claim for damages against the Downton Council under the tort of negligence.

I searched for “Failure to maintain highways, where the authorities will be held liable for damages” On Westlaw library I found the case Crawley v Barnsley Metropolitan Borough Council (2017) EWCA Civ 36 in this, case is similar to O’Brien’s situation therefore applied the law to the facts.

On Westlaw library, I found the Wilkinson v City of York Council (2011) EWCA Civ 207 after studying the case I learnt that “a lack of resource is not a good reason for having inadequate system” which was relevant to O’Brien’s circumstances.

In Wilkinson v, the judged stated that, the local authorities could have a defence under the Highways Act 1980 s.58 and hence, I have visited the government website www.legislation.gov.uk and I read s58 HA 1980 and found that the Downton Council can challenge a defence for non-repair of highway.

On Westlaw I have recently searched for “local councils are obliged to maintain highways” and found that the case of Mills v Barnsley MBC Court of Appeal (Civil Division) [1992] 2 WLUK 76. After scrutinising the case, I have learnt that, the “test of dangerousness” has to be considered in our client’s case and found out whether the local authorities are in breach of a statutory duty under s41 of the Highway Act 1980.

I therefore re-visited the government website www.legislation.gov.uk and I have searched for s41 of the Highway Act 1980 and found that the highway authority is obliged to keep the fabric of the highway in such a good repair and ensure that, the roads are safe for ordinary traffic at all the time of year.

I then have accessed to the LexisNexis- library and searched for “do councils have to repair potholes immediately” I found the cases of McKenna v Scottish Omnibuses Limited and another (1985) Lexis Citation 498 and here established that, the local authority is under a duty to maintain the highways.

I have visited Westlaw library searched for “claim for damage caused by potholes” I have found the case of Peter Dewar v Scottish Borders Council [2017] CSOH 68; [2017] 4 WLUK 467 where this case stated that, hazards which are not classed as a defect and not constituted a significant hazard will not be taken into consideration to establish liability.

On Westlaw I discovered the case of Berry v Vale of Glamorgan Council Family Division District Registry (Cardiff) 09 April 2018 [2018] 4 WLUK 623 where after studying the case, I learnt that not every accident caused by defects must result in compensation it always depends on the facts of the case.

I have used Google search engine and searched for “claim for damage caused by potholes” then I followed the link and visited the site www.newlawjournal.co.uk and here I have found that the Wilkinson v City of York Council [2011] EWCA Civ 207, [2011] All ER (D) 162 and here a defence to a highway liability claim under s 58 of the Highways Act 1980 was relevant to O’Brien’s situation.

On Google I have searched for “are the local Councils are legally obliged to maintain roads and potholes”? I found the website www.transport-network.co.uk and read an article “Do councils have to fix potholes immediately” by Steven Conway here beside the recent cases e.g. Crawley v’ confirms that, the highway authorities need to have a reasonable system to respond dangers defects immediately and/ or out of hours.

I have searched for “personal injury caused by pothole” on Google and accessed www.lawgazette.co.uk then I found the case of AC v Devon CC Court of Appeal (Civil Division) 30 April [2013] EWCA Civ 418 here the test of dangerousness was one of reasonable foreseeability of harm to users of the highway. Hence relevant to O’Brien’s circumstances.

I also searched for “who is responsible to repair highway defects” on Westlaw library and I found a journal the governance of compliance with public law by Simon Halliday. After reading this article had better understanding duty of care and negligence in tort law owed by the highway authorities to the road users.

I Searched for “Sue local council for personal injury caused by pothole” on Westlaw library I discovered the Journal of Personal Injury Law 2013 by Nick Bevan here in the case comment of AC v Devon CC [2013] EWCA Civ 418; (2014) highway authorities must provide more often regular inspection for specific defects.

On Google search engine, I investigated for “highways code of practice” and found the website www.ukroadsliaisongroup.org and then I did read Well-Maintained Highways code of practice. On the same site I have downloaded the full PDF transcript of Latest version of Well-maintained Highways code of practice which initially published in October 2016 and implemented in October 2018.

The main aim of the new UK code of practice ‘Well-managed highway infrastructure’, which has been published by the UK Roads Liaison Group (UKRLG) is to manage the highways potential risks, regular inspections, high standard maintenance to ensure safety and security in the highways.

After studying the latest version of the highways code of practice, I have learnt that, the part B and C of the code was relevant which confirms that, the best value and performance improvement, standards for inspections and emergencies must be managed in highways.

Whilst I was reading the “Well-managed highway infrastructure” I discovered the case of TR v Devon County Council (2013) EWCA Civ 418 here established that, the new code is an evidence of good practice.

I believe that, I have found all the necessary information and I therefore, at this point, conclude my research. I hope this information is sufficient enough to give a proper advice to our client Mr O'Brien regarding his personal injury claim for damages against the Downton Council.