A council’s annual inspection system was recently found by a court to be adequate for the purposes of S.58 of the Highways Act 1980 (the Act) when determining liability. Lucie Evans and Suzanne Milne report.
In Williamson v Kirklees Council, Huddersfield County Court, 20 June 2018 (DJ Barraclough) the council’s annual system of inspection was adequate for the purposes of S.58 of the Highways Act 1980 (the Act) and it was not undermined by a complaint about the highway five weeks before the claimant’s accident.
The claimant fell due to a pothole in the centre of the carriageway of an annually inspected road. The accident occurred on 11 March 2016. The pothole had not been identified on the last driven inspection of the road some five months earlier (15 October 2015), but there had been a complaint approximately five weeks before the accident (8 February 2016).
The complaint was received by the council’s corporate call centre. Call handlers were trained to refer anything considered urgent to the highway customer services team; otherwise the complaint would be processed as a routine repair within eight weeks. The information was passed to the highway customer service team the next day who undertook a quality check including consideration of whether other complaints had been received and the nature and classification of the road. If the customer service team had deemed the complaint urgent they would have arranged a site inspection to further assess and determine any necessary repair.
The judge dismissed the claim. The key issue was whether the council was able to rely on its defence under S.58 of the Act. The judge accepted that the road was correctly classified such that an annual inspection regime was appropriate. There was no evidence that the defect was longstanding and so it was also accepted that the defect had developed between the inspection and the complaint. The council’s response to the complaint was proportionate and reasonable. The complaint itself reported no injury or damage, the defect was described as being ‘tennis ball sized’ in the centre of the carriageway and there had not been any other complaints. The council’s S.58 defence was therefore upheld and it was simply regrettable that the claimant had suffered injury in the eight week period between the complaint and the repair.
The Court of Appeal decision in Crawley v Barnsley MBC  EWCA Civ 36 led some commentators to the view that highway authorities must respond to all reported defects by inspecting them immediately. This is not the case. The decision was limited to the issue of reported defects being left over a weekend period without an evaluation of their seriousness. As this claim neatly demonstrates, where an adequate routine inspection regime is backed up by a suitable system for evaluating complaints, the S.58 defence may still be upheld. The fact the council was aware of the defect prior to the accident was not fatal to the defence.