This summer saw two court cases that will bring some relief to local authorities struggling to maintain highways and defend themselves against legal claims at a time of spending cuts.
The case of Walsall MBC v Millard went some way to addressing concerns raised by the judgement in Wilkinson v City of York Council [2011] over the ability of councils to use a Section 58 defence from the Well-Maintained Highways code of practice.
This clause provides ‘a defence against action relating to alleged failure to maintain on grounds that the authority has taken such care as in all the circumstances was reasonably required to secure that the part of the highway in question was not dangerous for traffic’.
The wording ‘reasonably required’ is the key issue here and to some its meaning was damaged by the ruling of Toulson LJ in the Wilkinson case, which has been taken to mean a council cannot use a lack of resources argument in making a s58 defence.
In the first instance a deputy district judge found against Walsall MBC, which was being pursued by a claimant who tripped on a dangerous highways defect on 27/2/10. The location had been due for its six-monthly inspection by 17/2/10, but this had not occurred because periodic inspections were suspended by the council during the harsh winter of 2009-2010.
Under a deluge of complaints Walsall abandoned its periodic system of six-month inspections to go reactive.
On appeal HHJ Gregory overturned the initial decision, applying reasoning from the previous case of Griffiths v Liverpool Corp [1967] and stating there was a distinction between a highway authority that, as a matter of policy, decided to not inspect highways at accepted necessary intervals in order to re-allocate resources and ‘a highway authority that seeks to manage its highways budget in accordance with the prevailing conditions at the time’.
Barrister, Matthew White, successfully represented Walsall and stated: ‘So far as highway authorities are concerned, [this is] another move in the right direction away from the strictures of Wilkinson. This decision suggests that it is open to a highway authority to justify departure from its own inspection frequency and/or that set out in Well-Maintained Highways, Code of Practice for Highway Maintenance Management in appropriate circumstances.’
Mr White does offer a word of caution as this was an extempore decision of a circuit judge who heard an appeal from a deputy district judge. Therefore it does not set a binding precedent in higher courts.
Simon Hills, the partner in charge of public sector litigation at Plexus Law, told Surveyor that while the ‘judgement did not say Wilkinson was wrong’ it did suggest a S58 defence could be used ‘when you have external circumstances, such as winter conditions, as that is distinguishable from the issue in Wilkinson’.
Mr Hills also suggests this case opened up the possibility of more S58 defences even when there is an internal policy decision and raises the prospect that the Wilkinson judgement could be overturned.
This is because of a possible error in Toulson LJ’s approach in Wilkinson, as revealed by consideration of Griffiths. The proper test is not what is reasonably necessary, as Toulson LJ said in his judgement, but what is reasonably required.
Mr Hills says: ‘Someone is going to have to take this to the Court of Appeal and say that the Wilkinson decision applied the wrong test, [with reference to the Griffiths case]. At some point where it is appropriate someone needs to take case to the Court of Appeal and say that Wilkinson was just wrong, it may have to go to the Supreme Court. It is going to have to be a clear case with a significant value attached to it unless it is a low value case but is good on the facts. It might be in the interest of all highways authorities to fund a test case on this.’
Another way to change this judgement would be through primary legislation, he adds. Another case, McCabe v Cheshire West and Chester Council, reinforced the legal principle that a local authority does not owe a duty to the public to light the highway. This is of particular interest at a time of austerity when some councils are seeking to turn off lights to save cash.
Lawyers at Langleys successfully argued that the local authority had no duty to light the highway and in any event failing to maintain the lights did not give rise to liability. As a result the case was dismissed.
For more information and to register for the UK's leading winter maintenance conference and exhibition, Cold Comfort 2014, click here.
