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Highway authority duties


The Duty Your Local Highway Authority Owes You for Your Road Conditions

It owes you a duty of care for roads maintainable of public expense. These roads are the responsibility of highway authorities and they are responsible for maintaining the highway. 

However, Section 58 of the 1980's Highways Act gives a highway authority a defence: that it is not liable for the consequences of a matter if it can prove that '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'.

Which is the right highway authority?

What does this mean?

The local authority is responsible for maintaining and repairing the highway, which can be a road, cycle tracks, walkway, footpath over which every member of the general public has a right of passage.

There is no obligation to improve a highway only to maintain it. Highways authorities are under a duty to maintain the highway in a fit state to accommodate the 'ordinary traffic which passes or maybe expected to pass' along them.

Section 58: What does it mean?

The highway authority, as stated, can raise a defence to prove that they have taken 'such care as in all the circumstances was required to secure that part of the highway to which the action relates was not dangerous to the traffic'. Therefore, a highway authority needs to take reasonable care of the road.

What must a court take into account?

The court must look at the following (under Section 58 (2) :

What do you have to prove?

You have to prove on the balance of probabilities (i.e. that it's more probable than not) that the part of the highway where the accident occurred was not reasonably safe and that the accident was caused by the dangerous condition of the highway.

If you are able to establish these two areas, the highway authority can then raise the Section 58 defence. The burden of proving the defence is upon the highway authority. This is very much a public policy decision.

The courts are expressing a view that they want finances to be put into maintaining the highway, rather than being used to pay damages.

Several cases illustrate the courts' views on this. Some extracts are listed below by way of example.

So what must the highway authority show to avoid liability?

It must show that no amount of reasonable care on their part could have prevented the danger, in that an inevitable accident may occur.

Carriageways do not have to be maintained to the same standards (i.e. major and minor roads require different levels of inspection and repair), but the local authority must know the character of the highway and the traffic reasonably expected to use it in order to decide levels of inspection and maintenance.

For example if a road is particularly old or fragile, the local authority must take that into account, if heavy lorries are using it etc. Therefore more frequent and detailed inspections of roads where traffic flow is high are a reasonable assumption when compared to a country road with less traffic.

There are cases where a highway authority has inspected the road and noticed a defect, and an accident has occurred between the defect being flagged and repaired. Here, the court will look at the size of the defect, the amount of the traffic using the stretch of highway concerned and the danger posed. Obviously the greater the danger, the less tolerant of delays the court would be. If there is a serious defect warning notices will be expected.

In order to support its position the highway authority should be able to provide records of highway inspections, maintenance records, and complaint/accident records.

All of these can be investigated to see whether or not the right inspections were being dealt with at the right time by the courts to be put in place. You are entitled to ask for and see these documents which will allow you to see if you have a case to progress.

For more information regarding cycle accident, please visit our page.

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All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact our client services team on 03700 868686.



This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022

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