Highway Incidents

Highway liability claims are always a bit of nightmare, not least because only rare local authorities seem to take into account the likely use of a highway by cyclists when drawing up and more importantly implementing, their maintenance policy.

The Highway Authority is under a statutory duty to maintain and repair the highway (Highways Act 1980 S.41 (1) and 329 (1)) and that duty is to keep the road as dedicated to the public in such a state as to be safe and fit for ordinary traffic.

To prove there has been a breach of the duty, a Claimant must show that the highway was not reasonably safe and prove, on the balance of probabilities:

  1. The exact place of the accident/defect that caused his injury
  2. That the cause of the accident represented a danger

The starting point is whether injury might reasonably have been foreseen.

Denning L.J. in Morton v Wheeler said:

if a reasonable man, taking such contingencies into account and giving close attention to the state of affairs would say: “I think there is quite a chance that someone going along the road may be injured if this stays as it is”, then it is a danger; but if the possibility of injury is so remote that he would dismiss it out of hand saying: “Of course it is possible but not in the least probable” then it is not a danger.

This is a pre Highways Act decision but is a useful indication of the judicial approach to the consideration of whether or not the site of the accident is a danger. The question is an objective question of fact in every case and expert evidence can only be of assistance.

It is not just the height or size of the defect that is relevant but the full nature of it in the context of the road and road user that must be considered. In the case of Michael Byrne v Welsh Office, a cyclist suffered tetraplegia as a result of cycling into a drainage gulley. It is clear from the facts in that case that the drainage gully would most likely not have presented a car driver with a risk of foreseeable injury. Indeed, the gulley was described as “a less than readily obvious hazard”. However Collins J commented:

In my judgement no one giving ‘close attention to the state of affairs’…who was having regard to the use of the road by cyclists could reasonably come to the conclusion that by virtue of its existence injury was ‘not in the least probable’. Injury was, in my judgement, readily and easily foreseeable

There is no rule of thumb to enable you to be certain when advising on the question of whether the accident site was a defect. At the end of the day, the Courts have consistently said that the question of whether a particular highway is unsafe is one for the trial judge to decide and will rarely, be a matter for appeal.

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