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Highways Act: Defects not considered cause of Claimant's accident

  • 29 December 2020 29 December 2020
  • UK & Europe

  • Insurance & Reinsurance

The High Court recently considered the application of the Highways Act and negligence in circumstances where it was alleged that a local authority had failed to maintain the road surface. In this particular case, the Court concluded the Claimant cyclist had travelled too wide and fast around a corner before colliding with a van.

Highways Act: Defects not considered cause of Claimant's accident

Dominic Nash v Hertfordshire County Council [2020] EWHC 3247 (QB)

Whilst potholes were present on the road, these were not considered dangerous and had not been present on the Defendant's inspection seven months before the accident. This decision will provide useful guidance in future decisions. There is the prospect of increased numbers of similar claims during the winter months, in addition to the fact that usual levels of inspections may have been impacted by the ongoing pandemic.

 

Background

The Claimant pursued a claim for damages following an accident in 2016. The Claimant was riding his bike when he collided with a van travelling in the opposite direction after he had rounded a 90 degree bend. No fault was alleged on the part of the van driver.

The Claimant alleged the local authority (“the Defendant”) was at fault for failing to ensure the highway was in a reasonable state of repair. It was claimed that potholes present in the vicinity of the accident location were dangerous and the cause of his accident. The Claimant alleged he was forced to swerve into the van's path to avoid them.

The most recent inspection had taken place seven months earlier, as part of the annual inspection regime. The Claimant alleged this was not performed correctly as the defects should have been noted and repaired.

In response, the Defendant submitted the accident was caused by the Claimant travelling too fast and wide around the corner and the Claimant had admitted this to the attending police officer. The Defendant accepted some defects were present, but they were not dangerous and the annual inspection had been carried out correctly.

 

Witness evidence

The Claimant said he veered off as soon as he saw potholes and this swerve took him over the centre line of the road and into the van's path. He stated he was not travelling particularly fast and had not mentioned potholes to the police because he was in distress, panic-stricken and trying not to blame the van driver.

One of the attending police officers described the potholes as being "significantly sized", but that the Claimant had said to him that he had come around the bend too wide and too fast. Another officer stated the road was in a poor state of repair with pooled water in potholes on and around the apex.

The Claimant's wife attended the scene with the Claimant's solicitor one month after the accident. They took photographs of the road and measured the potholes with their hands. She said the deepest were 4-5 inches.

The inspector who had completed the August 2015 inspection was confident he had not missed any significant defects as alleged. He had identified three defects along Mangrove Lane.

 

Expert evidence

The Claimant's highways expert opined that there were defect(s) at the locus in August 2015 that had not been noted, but that whilst an assessment was required, action was not. The Defendant's highways expert countered that there was every reason to consider the potholes had occurred over the winter.

Both experts on road traffic collisions concluded the Claimant was likely to have been travelling in excess of 10mph. The Defendant's expert concluded that since the bike was leaning to its left at the point of collision, that it was more consistent with the Claimant travelling too wide and fast than swerving to the right.

 

Judgment

HHJ Lickley QC accepted the evidence of the highways inspector in August 2015. He was found to be "highly experienced, conscientious and well-trained" and the judge was of no doubt that if there was a defect at that time it would have been noted. On balance it was found that any defect present on the day of the accident had emerged after August 2015.

The judge could not be satisfied any of the potholes were deeper than 40mm on the day of the accident, and stated the evidence led him "to conclude the depth of the three larger potholes was less than 40mm but on balance more than 30mm". He acknowledged that the accident location had defects but “was not in a condition which exposed to danger those using it in the ordinary way". The defects did not represent the "the sort of dangers which an authority may reasonably be expected to guard against" and there was no breach of s41 Highways Act 1980.

The potholes did not cause the accident; HHJ Lickley found that "if the potholes had played any part in [the Claimant's] unfortunate accident" the Claimant would have mentioned them to the police officer at the accident scene or on the way to hospital.

 

What can we learn?

  • When defending highways cases, it is important to obtain good quality photographs and measurements of the relevant defect(s) and general location to assess the likelihood of succeeding or defending the claim. These should be obtained as soon as practicable by the defendant. Photographs of defects with no proper measurements will not be as beneficial to a judge.
  • In terms of the expert opinions, the judge preferred the evidence of the Defendant's highways expert who had been to the accident locus and also obtained weather reports for the relevant period for the location. He had explained that the defects could have appeared in the seven months since the August inspection given the weather, and that such defects can appear rapidly. The Claimant's expert on the other hand had obtained weather reports for the south-east generally, and had not been to the accident locus.

End

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