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Highways, Maintenance and the Law

Some thoughts and reported cases
by Nicholas Hancox

Not all highways are maintainable by the local highway authority, so, when receiving a claim for liability apparently arising from a failure to maintain the highway - or from inadequate maintenance - the first check in the highway authority's office must always be "is that one of ours?"

The quality of the maintenance is often a contentious point.  "Maintenance" includes "repair" (see section 329 (1) of the Highways Act 1980).  The duty is absolute in the sense that maintenance must actually be done, but it is not absolute in the sense that the road has to be perfect.  The duty is to put the highway in question in 'such good repair as renders it reasonably passable for the original traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition'.  (See Lord Hoffman in Goodes v East Sussex (2000).)  

There are some roads which are dedicated for use in the summer only, it being recognised that they are impassable in winter (R. v Brailsford Inhabitants (1960)).

The test is clearly objective, rather than subjective.  The duty to maintain does not extend to:

  • preventing the formation of ice on the highway (Goodes v East Sussex);
  • maintaining land other than the highway (Stovin v Wise (1994)) (reversed on other grounds);
  • painting of markings on the surface of the highway (Gorringe v Calderdale Metropolitan Borough Council  (2002)); or
  • the erection of traffic signs (Lavis v  Kent County Council  (1992)).

Nevertheless no standard of repair is prescribed by the Highways Act 1980.

Here are two more reported court cases on Highway Maintenance:

  • Matthew Shine v Tower Hamlets (2006)

Tower Hamlets had installed some bollards in a footway, to protect pedestrians from the danger of vehicular traffic.  Matthew Shine, 9, left his mother, went up to one of these bollards and attempted to leap-frog it.  "Most unfortunately" as the Court of Appeal judgment says "the bollard that he chose for this purpose was insecure, not being properly secured to the floor (sic) and under the impact from Matthew, it wobbled and he fell off and injured himself."

On the facts, if the bollard had not been insecure, Matthew Shine would have perfectly safely achieved his leap-frog. 

An unhelpfully frank Tower Hamlets employee told the County Court Judge that the bollard in question had been identified as being in a loose state on 10th July 2001, three months before the accident and she had for that reason raised an order for a repair to be carried out on the bollard. 

The judge at first instance had found that it is foreseeable that children might leap-frog over bollards.  Quite plainly, according to the Court of Appeal,  that finding was not only open to him but also, in the Court of Appeal's respectful view, correct.  The County Court Judge had also accepted Matthews Shine's own evidence that he did not see the hole in the ground that base of the bollard, which was the reason why it was insecure and that, if the boy had seen the hole, he would have gone on and chosen a different bollard over which to leap.

The Court of Appeal looked at section 41 of the Highways Act 1980, along with section 66, which enables a highway authority to install objects in the highway which would otherwise be unlawful obstructions.  Section 66 (2) reads:

"A highway authority may provide and maintain in a highway maintainable at public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway"

Section 66(3) says,

"A highway authority may provide and maintain in a highway maintainable at public expense by them which consists of a footpath, such barriers, rails or fences as they think necessary for the purpose of safe guarding persons using the highway".

The Court seems to have overlooked the fact that this particular footway was not a footpath. The two are materially different (see section 329). 

Without section 66, the bollard may have been an unlawful obstruction of the highway.  The claimant tried to argue that the hole in the footway was the cause of the problem but the Court of Appeal disagreed.

Lord Scott of Foscote had gone back to a 1937 case (Skilton v Epsom and Ewell), in which a traffic stud had been placed in the centre of the highway and become loose.  It is a very similar case to the bollard in Shine.  Following Skilton, Matthew Shine's case was therefore a nuisance and negligence case, rather than a breach of statutory duty case.

The elements of negligence were clearly established at first instance.  It was foreseeable that a child in Matthew's position, would be quite likely to leap-frog one of these bollards.  It is also established that it was the insecure state of the bollard and nothing else that caused Matthew?s injury.  Was the local authority therefore negligent in not putting the bollard in order at the time when they came to know of its insecurity?

Tower Hamlets argued that either you have a statutory obligation or you have nothing.  There should be no room for the introduction of the law of negligence into a section 66 case.  This argument was dismissed by the Court of Appeal. 

The Court of Appeal looked for contributory negligence.  There was none.  Judgment for the child.

  • Gary Poll v Viscount Asquith

Gary Poll was riding a motorcycle near Frome in Somerset when he collided with a fallen ash tree.  The owners of the tree were the Viscount and Viscountess Asquith of Morley.  Mr Poll said that the Asquiths were negligent in their care and management of the tree and that his injuries were the product of that negligence. 

The tree in question was a multiple stemmed ash.  There was structural defect in the tree namely an included bark union, otherwise called an included bark defect and a fugal bracket immediately beneath the stem which fell.  There was a 40 knot wind on the day and the combination of these factors caused the stem to separate and fall.

The Asquiths had an independent forestry contractor to inspect their many roadside trees.  The inspected carried out "drive-past" inspections.  If he saw something wrong with a tree, he would get out of his car and make a closer inspection. But in relation to this particular ash tree, the experts before the court agreed that this tree demanded more than a cursory examination. 

What level of tree inspector should have been used?  Mr Poll said a Level 2 inspector was needed.  They did not need the higher skills of a Level 3 expert, but the actual inspector reporting to the Asquiths was only Level 1. 

Mr Poll and the Asquiths agreed that is was possible to categorise trees into risk categories.  This multi-stemmed ash was a medium risk, until the fungal bracket came to be observed, where upon it was elevated to a higher risk.

Was there "a causative breach of duty" on the part of the Asquiths?  The Asquiths' own expert at the hearing said, "When trees such as ash grow back after cutting and produce multiple stems, they sometimes form what is known as "included bark unions" which are structural defects."

The Asquiths' court expert said that the drive-by inspector was good enough, but this claim did not sit well with his own argument about the risks of the tree.  At the trial, both experts agreed that a competent inspector (by which they meant a Level 2 inspector) would have wanted to see what lay beneath the stem.  The Asquiths' witness conceded that a competent inspector, searching for disease, would have found this bracket.  The witness said that a Level 2 inspector was needed, but the Asquiths had only provided Level 1. 

Judgment in favour of the motorcyclist and against the landowners.