Statutory Defence

It is unusual, to receive a prompt admission of liability in a highway liability claim. More often, a standard form letter is sent received from you opponent politely explaining s 58 of the Highways Act 1980.

The Defence to the claim will be something along the lines of ‘we do not accept there was a defect. Even if there was we are not responsible, because we inspected the road at some point before the accident and we were going to inspect it at some point after the accident. Further, in between the inspection beforehand and your client’s accident, nobody told us about the pothole’.

Section 58 provides:

  1. is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous for traffic

When looking at a S58 Defence the Court will take into account a number of things to include the character of the highway and the traffic reasonably to be expected to use it, the standard of maintenance appropriate for that type of road and traffic, the state of repair in which a reasonable person would have expected to find the highway, whether the Authority knew, or could reasonably have been expected to know, that the condition of the highway was likely to cause danger to the public, and where the Authority could not reasonably have been expected to repair the highway before the accident occurred, what warning notices of its condition had been displayed.

Proving the defence is a matter for the Court based on the circumstances of the particular case. The evidence that the Authority can produce of its inspection, repair and maintenance routine of highways for which it is responsible and the accident locus in particular, will largely determine this.

Remember if your client’s claim arises from their bike skidding off the carriageway due to ice formation that Goodes v East Sussex County Council (2000) LGR 465 had until recently, put paid to your chances of raising a successful claim. However, the S41 Highways Act 1980 has been amended by S111 Railway and Transport Safety Act 2003 which came into force on 1st November 2003 and places a duty upon a highway authority to ensure so far as is reasonably practicable, that safe passage along a high-way is not endangered by snow and ice.

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