PI Brief Update

Decoding the Statutory Defence - Mark Fowles, Browne Jacobson LLP

02/08/13. We tend to forget how novel, in the context of the history of personal injury claims, are accidents on the highway. The current Section 41 of the Highways Act 1980 can trace its history back to no earlier than to Section 1 (1) of the Highways (Miscellaneous) Provisions Act 1961 (brought in in those innocent days, to Parliamentary acclaim at this further step towards securing the wellbeing of the nation). Prior to that, outside misfeasance, no claims could be brought by people suffering accidents as a result of a failure to maintain.

Even with such a relatively brief history it is a little surprising that one of the most important elements of such claims, namely the Statutory Defence under Section 58 of the 1980 Act, and the question of whether or not a Highway Authority can make out a sufficient system for maintenance so as to bring themselves within it’s protection, has stayed more a matter of folklore than judicial decision making. In particular I am thinking of the status of the Code of Practice ‘Well Maintained Highways’ (which itself dates from no earlier than 1993 in its original form). The status of the Code has been considered by the Court of Appeal on at least two previous occasions. In Rance v Essex County Council (unreported 21^st Feb 1997), Otten LJ noted that whilst the Code set down “stringent obligations upon Highways Authorities, it had to be borne in mind that they are recognised as guidelines only and do not impose a rigid regime for the inspection and maintenance of roads”. Not so long ago in Wilkinson v City of York (2011) EWCA CIV 207, Toulson LJ accepted that the Code was not a statutory document and provided only a suggested framework. In that case Toulson LJ appears to have placed considerable emphasis on the passages in the Code which required variations in policies and practices to follow a risk assessment, approved, adopted and published by the Authority, with the process to involve the Authority’s executive. The Court also, of course, took the view that financial priorities could not be part of that risk assessment.

And there it lay until the decision of Mrs Justice Slade in TR v Devon County Council.

There has been a tendency with both Courts and Practitioners to apply the Code as if were the sole benchmark under Section 58 - compliance or otherwise being the quick and easy route to deciding liability. Slade J’s decision did nothing to dispel this tendency.

TR was the driver of a car which overtook a slower-moving vehicle on a rural road in Devon. He misjudged his manoeuvre in that his car left the road first to the offside then shot back across the highway as he over steered to get back onto the highway to the nearside. His passengers were seriously injured and TR admitted negligence in the action brought by the passengers against him. Subsequently his insurers brought an action against the Highway Authority, blaming the defective state of the offside of the road for TR’s loss of control.

The action came before Slade J in the High Court with Lord Faulks QC and Angus Piper acting for the Defendant. There was always thought to be a risk on primary liability but the Defendant had some hopes of a finding of substantial contributory negligence however Slade J found that there was a defect, that the Statutory Defence was not made out and that there should be no deduction for contributory negligence. In so doing she put great weight on the role and status of the Code of Practice.

Devon operated a more nuanced approach to highway maintenance than that put forward in the Code with more categories of road and a greater variety of inspection routines. In respect of this particular road, however, it was admitted that Devon inspected less frequently than for the equivalent road under the Code’s classification. Slade J found Devon at fault for failing to following the Code’s recommended repair schedule for such a road, and for failing to produce a written risk assessment and written justification by way of explanation. In so doing she took Toulson J’s position in Wilkinson rather further. Due to these perceived failings Slade J took the view that Devon could not succeed under Section 58. The aggrieved Defendants went to the Court of Appeal (with the leave of the Trial Judge) and whilst the Highway Authority has been left with a substantial liability to TR’s insurers, nonetheless the decision of the Court of Appeal is of some significance.

The Court of Appeal were not persuaded by the Defendant’s arguments with regards to liability itself and the Defendant’s reliance on James v Preseli Pembrokeshire District Council (1993) PIQR P114. It found without a great deal of hesitation that the combination of pothole and overriding defect was an identifiably dangerous part of the Highway. The Court of Appeal were rather more troubled by the Judge’s findings as to the Statutory Defence and the role of the Code. Hughes LJ noted that the Code (2005 edition) at 1.3.2

“Authorities also have certain legal obligations with which they need to comply and which, on occasion, will be the subject of claims or legal action…It has been recognised that in such cases the contents of this Code may be considered to be a relevant consideration. In these circumstances, where Authorities elect, in the light of local circumstances to adopt policies, procedures or standards differing from those suggested by the code it is essential for these to be identified, together with the reasoning for such differences”

Hughes LJ noted that the Code set out no mandatory rules and was no more and no less than “evidence of Good Practice”. He emphasised that “Authorities must exercise their own judgement…when it comes to the specific issue of inspection intervals; other considerations will clearly involve traffic use, experience, the frequency of adverse incidents and the like.”

He went on to say the advice in 1.3.2. (footnote 1.3.2 in the 2005 edition of the Code of Practice) provides:

“The advice in 1.3.2 to make explicit reasons for adopting different policies is clearly wise, given the exposure of Highway Authorities to the possibility of litigation, but it is advice, not a rule. It cannot amount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the Code a mandatory instrument”

Hughes LJ also had something to say about the issue of evidence. Devon had put before the Court the unchallenged evidence of other Authorities which had adopted similar inspection regimes to Devon, namely Kent, Cumbria, Tameside and Surrey. Each of them had adopted inspection intervals different from those set out in the Code and they varied significantly both from the Code and as between each other in their treatment of inspections. Further, the Highways expert called by TR gave evidence to the effect that he had turned up six more Authorities which inspected local distributor roads at intervals less frequent than the code suggested. Slade J found this evidence “of little or no assistance in this case”. Her reasoning was consistent with her view expressed as to departures from the Code. She said it was not valuable because she had no evidence of the reasoning behind the departures. Hughes LJ commented that this might be a perfectly legitimate conclusion

“If it were once correct that the Code provides a mandatory norm from which departure must be justified by reasons given, but it does not…At the very least, the evidence of the practice of other Authorities pointed towards a respectably held view among professionals charged with highways maintenance that six monthly inspections of 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.”

In consequence the Court of Appeal found the Judge’s approach erroneous. Rather regrettably, from Devon’s point of view, and despite the flawed approach of the Judge, the Court of Appeal found sufficient evidence to justify the conclusion that this particular road needed inspection at shorter intervals. Accordingly, whilst rejecting the Judge’s wider arguments in respect of Devon’s policy the Court of Appeal upheld her finding that the Statutory Defence had not been made out.

Perhaps the most surprising element of the Judgment at first instance was the finding of no contributory negligence at all on the part of the driver. The Judge’s basis for this was that the driver had been put into an ‘agony of the moment’ situation by the defect. Hughes LJ distinguished the driver’s behaviour on trying to exit the rut from his behaviour on entering the defect in the first place. The Judge was quite entitled to come to the view that even if TR might have avoided the over steer in trying to get back onto the road that this did not amount to a want of reasonable care. However, the same did not apply to the conclusion that there was no negligence on entering the defect in the first place. It was there to be seen and the contours of the road were such that it could only have been inadvertence on the part of TR that he did not see the defect and avoid it. On the evidence, and the Judge’s findings of fact, there was simply no escape from the conclusion that TR made an error in not seeing the damaged area and avoiding it. This was a significant failure to keep a proper lookout and to manage the car correctly and accordingly the only proper finding was substituting for Slade J’s judgment a finding of contributory negligence to the extent of 50%.

Despite the result for Devon County Council the case should be of some comfort to Authorities. There is nothing in this Judgment that should justify or persuade a Highway Authority to devalue the importance of the Code of Practice. It remains a benchmark of good practice. However it ought to see an end to the habit that has grown amongst highways experts, Judges and practitioners of treating the Code as a mandatory document that must be complied with and viewing it as a touchstone rather than a benchmark. The Court of Appeal has restored the ability of Highway Authorities in their varying circumstances to come to their own judgements.

Mark Fowles
Browne Jacobson LLP 

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